Prell v. Murphy, 35831

• Decision Date: 05 February 1965
• Docket Number: No. 35831,35831
• Citation: 133 N.W.2d 5,178 Neb. 278
• Court: Nebraska Supreme Court
• Parties: Hazel PRELL, Appellant, v. Michael MURPHY, Appellee.

Page 5

133 N.W.2d 5

178 Neb. 278

Hazel PRELL, Appellant, v. Michael MURPHY, Appellee.

No. 35831.

Supreme Court of Nebraska.

Feb. 5, 1965.

Syllabus by the Court

1. Ordinarily, a party cannot complain of the submission of an issue to the jury where the finding on that issue is favorable to him.

2. A verdict will not be set aside as inadequate unless it is clearly against the weight and reasonableness of the evidence and is so disproportionate to the injury proved as to indicate that it was the result of passion, prejudice, mistake, or some other means not apparent in the record or that the jury disregarded the evidence or rules of law.

John McArthur, Lincoln, for appellant.

Ginsburg, Rosenberg, Ginsburg & Krivosha, Healey, Healey & Goth, Lincoln, for appellee.

Heard before WHITE, C. J., and CARTER, SPENCER, BOSLAUGH, BROWER, SMITH, and McCOWN, JJ.

BOSLAUGH, Justice.

This is an action for damages arising out of an automobile accident. The jury returned a verdict in the amount of $200 for the plaintiff, Hazel Prell. Her motion for new trial was overruled and she has appealed.

The accident happened at about 8:30 p. m., on April 10, 1960, on U. S. Highway No. 34, approximately 3 miles east of Lincoln, Nebraska. The weather was clear and the road was dry. Both automobiles were traveling at about 40 miles per hour.

The defendant, Michael Murphy, was driving west toward Lincoln, Nebraska. The plaintiff was a passenger in an automobile which was being operated in an easterly direction by her husband. Near the creat of a hill the plaintiff's husband observed the defendant's automobile which was then about 150 feet away and in the westbound lane of the highway. When the two automobiles were 50 or 75 feet apart, the defendant's automobile crossed the centerline of the highway and then collided with the automobile in which the plaintiff was riding. The point of impact was approzimately 6 feet south of the centerline. After the accident, the defendant stated that he was sleepy and must have 'dozed off.' The defendant did not testify and was riding. The point of impact was approximately

The plaintiff did not move for a directed verdict on the issue of liability and that issue was submitted to the jury. The plaintiff contends that this was error because the evidence as to liability was undisputed and established that the defendant was negligent and that his negligence was the proximate cause of the accident which resulted in the plaintiff's injuries.

Ordinarily, a party cannot complain of the submission of an issue to the jury where the finding on that issue is favorable to him. In Klein v. Wilson, 167 Neb. 779, 94 N.W.2d 672, this court said: 'The plaintiff has set forth four assignments of error which he contends are grounds for reversal. The first which will be considered here is an assertion that the court erred in failing to sustain plaintiff's motion for directed verdict at the close of defendant's evidence and at the close of all the evidence in the case. The bill of exceptions indicates that such a motion was made only at the close of defendant's evidence. However this is of no importance. Even if the motion at the time made was validly based and erroneously overruled, that ruling may not be treated now as a ground for reversal of the judgment. The reason is that the plaintiff obtained from the jury by its verdict without direction precisely what he sought by his motion.' See, also, Anderson v. Chicago, B. & Q. R. R. Co., 36 Neb. 95, 52 N.W. 840; Hauenstine v. Barnett, 98 Neb. 312, 152 N.W. 655; Weber v. Towle, 97 Neb. 233, 149 N.W. 406; Bartl v. City of New Ulm, 245 Minn. 148, 72 N.W.2d 303; Schneider v. Keokuk Gas Service Co., 250 Iowa 37, 92 N.W.2d 439; 5 A C.J.S. Appeal and Error § 1758, p. 1121.

In this case there was no issue of contributory negligence or comparative negligence and the plaintiff was not prejudiced by the submission of the issue of liability to the jury.

The remaining assignment of error relates to the adequacy of the verdict. The plaintiff contends that the verdict of $200 is grossly inadequate, and that it...