Roby v. Auker
| Decision Date | 20 May 1948 |
| Docket Number | 32294. |
| Citation | 32 N.W.2d 491,149 Neb. 734 |
| Parties | ROBY v. AUKER. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
1. A motion for directed verdict must, for the purpose of decision thereon, be treated as an admission of the truth of all material and relevant evidence submitted on behalf of the party against whom the motion is directed, and such party is entitled to have every controverted fact resolved in his favor and have the benefit of every inference that can reasonably be deduced from the facts in evidence.
2. When plaintiff moves to dismiss, or for a directed verdict or to withdraw from the jury consideration of defendant's claim upon a cross-petition in a negligence case, such defendant has a right to rely upon and have the benefit of any evidence of plaintiff's negligence which may appear in evidence adduced by plaintiff in his own behalf.
3. Where different minds may reasonably draw different conclusions from the evidence adduced or if there is a conflict in the evidence as to whether or not they establish negligence or contributory negligence, and the degree thereof, when one is compared with the other, such issues must be submitted to the jury.
4. It is the duty of the trial court to submit to and instruct the jury upon all material issues raised by the pleadings and supported by the evidence.
5. The emergency rule cannot be successfully invoked by either party in a negligence case unless there is competent evidence to support a conclusion that a sudden emergency actually existed, and then it cannot be successfully invoked by one who has brought that emergency upon himself by his own acts or who has not used due care to avoid it.
George W Leamer, of South Sioux City, and H. E. Siman, of Wayne, for appellant.
Mark J. Ryan, of South Sioux City, for appellee.
Heard before SIMMONS, C. J., PAINE, MESSMORE, YEAGER, CHAPPELL, and WENKE, JJ., and LANDIS, District Judge.
This is an action to recover for damages resulting from an automobile collision. Plaintiff was awarded a jury verdict and judgment thereon. Defendant's motion for new trial was overruled and he appealed to this court, assigning that the trial court erred: (1) In refusing to sustain defendant's motion for directed verdict; (2) in sustaining plaintiff's motion to withdraw from the jury defendant's counterclaim pleaded in his cross-petition; (3) in giving instructions Nos. 5 and 12 respectively; and (4) that the verdict and judgment thereon were not sustained by the evidence but were contrary to law and the evidence. We sustain the second, third, and fourth assignments.
The evidence adduced for plaintiff was substantially as follows: At a little after 8 A.M. of a foggy morning in February, when visibility was limited from 300 to 500 feet, plaintiff was driving his car west on the right side of a straight, level, icy, 20 or 22 foot-wide pavement. Some cars on the highway had lights on and some, including plaintiff, did not. Plaintiff saw two cars approaching from the west on the south side of the highway. Defendant was seen by plaintiff 400 to 500 feet away, with his lights on, suddenly turning out from behind the other cars in an attempt to pass them, at a high rate of speed, towit 40 to 45 miles an hour, 'maybe less.' Upon seeing defendant, plaintiff did not put on his brakes and attempt to stop, because he was afraid of skidding on the icy pavement, but took his foot off the accelerator, threw out the clutch, and coasted his car on to the west but toward the ditch on the right side of the pavement, at a speed of 28 to 30 miles an hour. A witness for plaintiff testified that the brakes could have been safely, if moderately, applied, and that it was not a measure of safety for plaintiff to disengage the clutch. To plaintiff, defendant appeared to have slammed on his brakes and lost control of his car, which then traveled across the pavement to the north, then south, thence back north on an angle, where the left front of defendant's car collided with the left side of plaintiff's car, at a point where the right wheels of plaintiff's car were four feet four inches north of the pavement, on the shoulder thereof.
After the impact, plaintiff's car was headed south in the ditch north of the pavement with the rear bumper against the fence north of the ditch 30 or 40 feet from the point of impact. Defendant's car was headed south, with the front end over and off the south side of the pavement on the shoulder and the rear end still on the pavement.
Plaintiff testified that sometime after the accident defendant said 'he was to blame, it was all his fault' and the sheriff testified for plaintiff that defendant said he was 'in a hurry' and if plaintiff 'had gone in the ditch he wouldn't have hit him.' However, defendant testified that he never made any such statements.
The evidence adduced for defendant was substantially as follows: That at the time of the accident it was cold but not freezing, and the pavement was wet but not icy. A car ahead of defendant was traveling slowly, 25 to 30 miles an hour, and having followed it for about a quarter of a mile defendant decided to pass the car. He started to turn out, looked, and seeing no car approaching, speeded up to perhaps 40 miles an hour. He then saw plaintiff's car about 300 feet away. At that time the right side of defendant's car was about in the center of the highway, and being unable to safely turn back into the south lane, he put on the brakes and tried to stop, but his car skidded first to the north, then south, and thence traveled straight east, where plaintiff's car, which came straight on down the pavement without deviation, collided with the left front fender of defendant's car. Thereafter, plaintiff's car traveled northwest for approximately 40 feet from the point of impact and defendant's car traveled southeast for approximately 20 feet from the point of impact. There they both stopped substantially in the positions heretofore described. Defendant testified that at the time of the accident there was approximately three-quarters of the width of a car between the left side of his car and the north side of the pavement, plus six and one-half feet of readily traversable shoulder north thereof. Photographs of the pavement and shoulder at the point of collision were offered by defendant and received in evidence.
Bearing in mind the foregoing evidence, we turn to the assignments of error. In this jurisdiction, a motion for directed verdict must, for the purpose of decision thereon, be treated as an admission of the truth of all material and relevant evidence submitted on behalf of the party against whom the motion is directed, and such party is entitled to have every controverted fact resolved in his favor and have the benefit of every inference that can be deduced from the facts in evidence. Hammond v. Morris, 147 Neb. 600, 24 N.W.2d 633; Halliday v. Raymond, 147 Neb. 179, 22 N.W.2d 614.
We call attention also to the fact that when a plaintiff moves to dismiss, or for a directed verdict, or to withdraw from the jury a consideration of defendant's claim upon a cross-petition in a negligence case, such defendant has a right to rely upon and have the benefit of any evidence of plaintiff's negligence which may appear in the evidence adduced by plaintiff in his own behalf. Meyer v. Platte Valley Construction Co., 147 Neb. 860, 25 N.W.2d 412.
What is reasonable care must in each case be determined by its own peculiar facts and circumstances, Lammers v. Carstensen, 109 Neb. 475, 191 N.W. 670, and negligence is essentially relative and comparative, depending on the surrounding facts and circumstances. McClelland v. Interstate Transit Lines, 142 Neb. 439, 6 N.W.2d 384.
Where different minds may reasonably draw different conclusions from the evidence adduced, or if there is a conflict in the evidence as to whether or not they establish negligence or contributory negligence and the degree thereof when one is compared with the other, such issues must be submitted to the jury. Thomison v. Buehler, 147 Neb. 811, 25 N.W.2d 391.
It is only where the evidence is undisputed or but one reasonable conclusion can be drawn from the evidence, that the question is of law for the court. Hamblen v. Steckley, 148 Neb. 283, 27 N.W.2d 178. In other words, if there is any competent evidence before the jury by which a finding in favor of the party on whom rests the burden of proof can be upheld, the court is not at liberty to disregard it and direct a verdict against him. Bainter v. Appel, 124 Neb. 40, 245 N.W. 16.
In the light of the foregoing rules and the evidence heretofore set forth, we conclude that the trial court did not err in refusing to sustain defendant's motion for a directed verdict.
On the other hand, upon like premises, we conclude that the trial court did err in sustaining plaintiff's motion to dismiss defendant's cross-petition and in withdrawing his counter claim from consideration of the jury by giving instruction No. 5. The effect of the instruction was to tell the jury as a matter of law that defendant was guilty of more than slight negligence, which was a question for the jury to decide.
In that connection, defendant's alleged violation of section 39-7,110, R.S.1943, in overtaking and passing another motor vehicle proceeding in the same direction, was not negligence as a matter of law but only evidence of negligence, and whether or not such alleged violation of a statute constituted negligence under the circumstances was a question for the jury under proper instructions. Herman v. Firestine, 146 Neb. 730, 21 N.W.2d 444; Landrum v. Roddy, 143 Neb. 934, 12 N.W.2d 82, 149 A.L.R. 1041.
In any event, defendant in his cross-petition, as if he we...
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