Remmenga v. Selk

• Decision Date: 15 November 1948
• Docket Number: 32407.
• Parties: REMMENGA v. SELK.
• Court: Nebraska Supreme Court

34 N.W.2d 757

150 Neb. 401

REMMENGA v. SELK.

No. 32407.

Supreme Court of Nebraska

November 15, 1948

[Copyrighted Material Omitted]

Syllabus by the Court

1. In a law action, where the case is presented to the jury under proper instructions, a verdict based upon conflicting evidence will not be set aside on appeal unless clearly wrong.

2. In testing the sufficiency of evidence to support a verdict it must be considered in the light most favorable to the successful party, that is, every controverted fact must be resolved in his favor and he should have the benefit of every inference that can reasonably be deduced therefrom.

3. Where the evidence is conflicting and from the facts and circumstances proved reasonable minds might draw different conclusions concerning any negligence or lack of negligence as well as comparative and contributory negligence, then the trial court should submit such issues to the jury.

4. Where there is no evidence to support the defense of contributory negligence it should not be submitted to a jury and to do so is prejudicial error requiring the granting of a new trial.

5. The negligence of a husband while driving an automobile, in which his wife is a guest, may not be imputed to her.

6. Where an occupant of a motor vehicle is engaged in a common or joint enterprise with the driver and has an equal right to direct and control the operation of the vehicle, the contributory negligence of the driver is imputable to the occupant. This is so although one takes no actual control while the other is driving.

7. To constitute occupants of a motor vehicle joint adventurers there must be not only joint interest in the objects and purposes of the enterprise but also an equal right to direct and control the conduct of each other in the operation of the vehicle.

8. The care required of a person who has voluntarily become intoxicated is the same as that required of one who is sober. If he fails to exercise that degree of care for his own safety which an ordinarily prudent sober person would exercise under the same or similar circumstances, and such failure contributes as a proximate cause to the injury of which he complains, he is guilty of contributory negligence.

9. The fact that a person was intoxicated is a circumstance which may be considered in determining whether he exercised such care, but the mere fact that he was intoxicated at the time he was injured does not of itself constitute contributory negligence.

10. A person riding in an automobile driven by another, even though generally not chargeable with the driver's negligence, is not absolved from all personal care for his own safety but is under the duty of exercising reasonable care to avoid injury. The care exacted is that which an ordinarily prudent person would exercise under like circumstances.

11. A violation of statutes regulating the use and operation of motor vehicles upon the highway is not negligence per se but evidence of negligence that may be taken into consideration with all the other facts and circumstances in determining whether or not negligence is established thereby.

12. Although a party may have negligently exposed himself to an injury, yet, if the defendant after discovering his exposed situation negligently injures him, or is guilty of negligence in not discovering his dangerous position until too late, and the plaintiff is because thereof injured, he may nevertheless recover.

13. The doctrine of last clear chance is not applicable where the negligence of the party seeking to invoke it is active and continuous as a contributing factor up to the time of injury, but its applicability is not avoided by the mere continuing existence of the consequences or peril resulting from prior but completed conduct.

14. It is the duty of an automobile driver, in driving his car, to keep such a lookout ahead that he will see an obstruction or a vehicle as soon as it is illuminated by his lights, and it is his duty to have his car under such control, under the driving conditions then existing, that he can stop it in time to avoid a collision with an object in the area lighted by his lights.

V. H. Halligan, of North Platte, for appellant.

Dent & Plummer, Beatty, Clarke & Murphy and Earl E. Morgan, all of North Platte, for appellee.

Heard before SIMMONS, C. J., PAINE, CARTER, MESSMORE, YEAGER, CHAPPELL, and WENKE, JJ.

WENKE, Justice.

This action was instituted in the district court for Lincoln County by Elva Remmenga, as plaintiff, and against Virgil Selk, as defendant. The purpose of the action is to recover damages resulting from injuries which plaintiff received in an accident allegedly caused by the negligence of the defendant in the operation of his automobile.

Plaintiff's petition sets forth two causes of action. The first is based on injuries which she personally suffered as a result of the accident. The second is an assigned claim from her husband James Remmenga, for medical, surgical, hospital, nursing, household, and traveling expenses which he incurred in her care and treatment and for the loss of her services and consortium as a result of her injuries.

Both causes were submitted to a jury. The jury returned its verdict for the defendant. Plaintiff then filed a motion in accordance with the provisions of section 25-1315.02, R.S.Supp., 1947. This motion related to both causes of action. She therein asked the trial court to either set aside the verdict and enter a judgment therein in accordance with her motion for a directed verdict or grant a new trial. The trial court sustained her motion for a new trial as to the first cause of action but otherwise overruled said motion. From this ruling the defendant appealed and the plaintiff has cross-appealed.

Because there has been an appeal and a cross-appeal it will be more convenient to refer to the parties as they appeared in the district court, that is, as plaintiff and defendant.

In submitting the case to the jury the court, in both causes of action, submitted the issue of contributory negligence; however, it only granted a new trial as to the first cause of action because of having done so. Consequently, the appeal presents the question of whether or not the evidence justified the submission of that issue as to the first cause of action. In considering this question certain basic rules are applicable.

'In a law action where the case is presented to the jury under proper instructions, a verdict based upon conflicting evidence will not be set aside on appeal unless clearly wrong.' Scott v. New England Mutual Life Ins. Co., 128 Neb. 867, 260 N.W. 377.

In testing the sufficiency of evidence to support a verdict it must be considered in the light most favorable to the successful party, that is, every controverted fact must be resolved in his favor and he should have the benefit of every inference that can reasonably be deduced therefrom. Long v. Krause, 105 Neb. 538, 181 N.W. 372; Central Granaries Co. v. Nebraska Lumbermen's Mut. Ins. Ass'n, 106 Neb. 80, 182 N.W. 582.

Where the evidence is conflicting and from the facts and circumstances proved reasonable minds might draw different conclusions concerning any negligence or lack of negligence, as well as comparative and contributory negligence, then the trial court should submit such issues to the jury. McDonald v. Wright, 125 Neb. 871, 252 N.W. 411; Parks v. Metz, 140 Neb. 235, 299 N.W. 643.

Of course, where there is no evidence to support the defense of contributory negligence it should not be submitted to a jury and to do so is prejudicial error requiring the granting of a new trial. Allen v. Clark, 148 Neb. 627, 28 N.W.2d 439.

As stated in Blank v. Omaha & C. B. Street Ry. Co., 137 Neb. 632, 290 N.W. 464, 467: 'This court has, on repeated occasions, announced that where the evidence fails to show contributory negligence on the part of a plaintiff the issue should not be submitted to the jury.' See, also, Fulcher v. Ike, 142 Neb. 418, 6 N.W.2d 610; Hofrichter v. Kiewit-Condon-Cunningham, 147 Neb. 224, 22 N.W.2d 703, 164 A.L.R. 1256.

The record discloses that for three or possibly four years prior to December 31, 1945, the plaintiff and her husband James, together with two other couples, namely, John and Maxine Remmenga and Mr. and Mrs. L. R. (Jack) Seaman, had been going to North Platte, Nebraska, to spend New Year's eve; that prior to December 31, 1945, they again planned to do so and on that date did go to North Platte for that purpose. On the last occasion they had invited Richard Rasmussen, a single man, to go with them. He did so, using his car for that purpose. All these people live in or near Elwood, Nebraska. Elwood is some 70 miles from North Platte.

To avoid repetition it should be stated that all cities and towns herein referred to are in Nebraska.

Rasmussen, whose car they used, drove to North Platte. They left Elwood about 5:30 p. m. and arrived in North Platte about 7 p. m. Rasmussen's car was a 1938 Tudor Ford and the motor thereof was apparently not in too good condition because on the way to North Platte they had to stop at Gothenburg and add three quarts of oil and on their way home, as will hereinafter be more fully explained, they stopped some 4 1/2 to 5 miles east of Maxwell to put in additional oil. After their arrival in North Platte they had dinner at a restaurant where they had previously made reservations. About 9 p. m. they went to a dance. They remained at the dance, except for intermission, until after midnight. Shortly after midnight they left to return to Elwood.

In returning to Elwood plaintiff's husband drove the car. Rasmussen and Seaman, in that order, also occupied the driver's seat. John Remmenga, Maxine Remmenga, Mrs. Seaman, and plaintiff, in that order,...