Pratt v. W. Bridge & Constr. Co., No. 25445.

• Court: Supreme Court of Nebraska
• Writing for the Court: HOWELL
• Citation: 218 N.W. 397,116 Neb. 553
• Docket Number: No. 25445.
• Decision Date: 07 March 1928
• Parties: PRATT v. WESTERN BRIDGE & CONSTRUCTION CO.

116 Neb. 553
218 N.W. 397

PRATT
v.
WESTERN BRIDGE & CONSTRUCTION CO.

No. 25445.

Supreme Court of Nebraska.

March 7, 1928.

Syllabus by the Court.

Where a contractor, employed by a county to construct culverts along the line of a newly built highway which has been completed as to grading with a roadbed 24 feet wide, open to public travel, lays culvert pipe under a fill in the road and covers the same so the roadbed at that point is narrowed to 12 feet, leaving holes on each side of the graveled way, abandons the work in the fall, to be resumed in the spring, without filling such holes, and an automobile driven over the road in the nighttime runs into one of the holes, resulting in the death of an occupant thereof, the questions of negligence and contributory negligence will ordinarily be for the jury to determine.

Under the disputed facts in the case at bar, the court properly submitted the case to the jury upon the question of comparative negligence.

An instruction which advises the jury that, if it should find the plaintiff guilty of negligence and that “such negligence * * * was slight in comparison with the gross negligence of the defendant, then you will find for the plaintiff,” is prejudicial and reversible error, for that “the gross negligence of the defendant” is thereby assumed. Such error is not cured by other instructions defining “slight negligence,” “gross negligence,” “burden of proof,” “preponderance of evidence,” where the doctrine as to comparative negligence is erroneously stated by the court.

In an action for damages by the father, as administrator, for himself and the mother of a young boy who was killed by the alleged negligence of another, a requested instruction stating that this action is brought “by the father for his own benefit,” “if you find * * * the accident resulted from the negligence of the father,” and if the negligence of the father and “defendant were equal,” the “plaintiff cannot recover,” is erroneous in each of the particulars indicated and was properly refused.

An action for damages to the parents of a young boy killed by the negligence of a contractor engaged, as such, by a county in highway construction work, such work not being repair work which is imposed by law upon the county, is not barred by section 2746, Comp. St. 1922, requiring suit to be brought within 30 days from the date of the accident against counties for damages “by means of insufficiency, or want of repairs of a highway, * * * which the county or counties are liable to keep in repair.”

It is not a defense to an action for damages to another, growing out of the negligence of a contractor constructing highways and culverts under a contract with a county, that the injured person was, at the time of the accident, operating or driving an unlicensed automobile upon a highway in violation of section 8388, Comp. St. 1922.

Appeal from District Court, Douglas County; Sutton, Judge.

Action by Lee Pratt, as administrator of the estate of Rodney J. Pratt, deceased, on behalf of himself and wife, against the Western Bridge & Construction Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

[218 N.W. 397]

Dressler & Neely, of Omaha, for appellant.

Helm & Lewis, of Hot Springs, S. D., Gerald F. Harrington, of Omaha, and M. F. Harrington, of O'Neill, for appellee.

Heard before GOSS, C. J., and ROSE, GOOD, THOMPSON, EBERLY, and HOWELL, JJ.

HOWELL, J.

Lee Pratt, as administrator, sued the Western Bridge & Construction Company on behalf of himself and wife for damages for wrongful death of Rodney J. Pratt, their three and one-half year old son. The company appeals from an adverse judgment of $5,289. Several errors are assigned, but only those considered important will be noticed.

[1][2] 1. It is contended the verdict is not sustained by the evidence. The negligence charged is: On February 8, 1923, the boy and his father and mother were riding in an automobile at night, on a state highway near Gordon, Nebraska, and ran into a hole at the

[218 N.W. 398]

side of the road as he approached a culvert which had been completed except as to concrete wings. The concrete work had been abandoned in the fall of 1922, to be resumed in the spring of 1923. The roadway, other than the culvert, was 24 feet wide and had been completed, and, by reason of excavations at each end of the culvert, the roadway was narrowed at that place to about 12 feet.

The facts found by the jury were that the automobile lights afforded visibility for 300 feet ahead. As the automobile approached the culvert the driver saw a woman walking east on the right side of the road, and, in order to pass her, the automobile was steered toward the left side of the road, and, as it was turning back to its proper place, its wheels dropped into the hole on the left side of the narrowed roadbed, throwing the boy out, resulting in his death. The appellant had a contract with the county to put in culverts where needed on the newly graded road. The road was open for travel. The hole into which the automobile dropped was so filled with tumble weeds that lights of the automobile would not reveal the true condition, and the automobile was traveling at a moderate speed. While the evidence is conflicting and will not be detailed, we think it sufficient to go to the jury on negligence and contributory negligence.

[3] 2. Another complaint is the giving of instruction No. 4 on the court's own motion. We think it is clearly erroneous, because it stated an erroneous rule on comparative negligence, and assumed appellant guilty of “gross negligence.” It assumes gross negligence; i. e., it told the jury, should it find there was negligence on the part of the parents of the boy, and “such negligence of the deceased's parents was slight in comparison with the gross negligence of the defendant, then you will find for the plaintiff.” No other comparison was allowed. It is claimed the error, if any, was cured by another instruction which told the jury “that the burden of proof is upon the plaintiff to establish by a preponderance of the evidence all of the material allegations of his petition, and plaintiff must satisfy you by a preponderance of the evidence that the defendant was guilty of negligence as alleged in his petition, and that such negligence was the direct and proximate cause of the accident, and that on account thereof plaintiff has sustained damages as a result thereof, and, unless you find that plaintiff has established each of the above propositions by a preponderance of the evidence, your verdict should be for the defendant. On the other hand, if the plaintiff has satisfied you that all of the above propositions have been sustained by a preponderance of the evidence, then your verdict should be for the plaintiff.”

No other instruction touched the question of comparative negligence. Since the case of Morrison v. Scotts Bluff County, 104 Neb. 254, 177 N. W. 158, decided by this court in 1920, there is scarcely an excuse for attempting to define the rule pertaining to comparative negligence than is therein stated. The statute defines it as one rule and not severable. In the instant case the jury were told...