Sacco v. Gau

• Decision Date: 28 July 1972
• Docket Number: No. 38220,38220
• Parties: Nettie SACCO, Appellant, v. Urban Cornelius GAU et al., Appellees.
• Court: Nebraska Supreme Court

Page 605

199 N.W.2d 605

188 Neb. 808

Nettie SACCO, Appellant, v. Urban Cornelius GAU et al., Appellees.

No. 38220.

Supreme Court of Nebraska.

July 28, 1972.

Syllabus by the Court

1. Ordinarily, a party is entitled to the benefit of the testimony of other witnesses in contradiction of his own, wherever his own is not of the character of a judicial admission, and concerns only some evidential or constituent circumstance of his case. This is especially so as to the circumstances of an accident or similar event, because in such a case the party's testimony is especially subject to inexactness of observation and memory.

2. Where a party testifies clearly and unequivocally to a fact which is within his own knowledge, such testimony may be considered as a judicial admission. That rule has particular application where the party so testifying made no effort to retract, qualify, or otherwise explain the positive force of his own evidence.

3. Violation of a stop light, standing alone, is not sufficient to prove gross negligence.

4. The admission in rebuttal of testimony which should have been offered in chief rests in the sound discretion of the court.

5. Instructions must be confined to issues supported by the evidence.

6. Instructions given to a jury must be construed together, and if when considered as a whole they properly state the law, that is sufficient.

Louis T. Carnazzo, Omaha, Albert C. Walsh, Gretna, for appellant.

Cassem, Tierney, Adams & Henatsch, John R. Douglas, Gross, Welch, Vinardi, Kauffman, Schatz & Day, Harold W. Kauffman, Eugene P. Welch, Omaha, for appellees.

Heard before SPENCER, SMITH, and NEWTON, JJ., and CHADDERDON and C. THOMAS WHITE, District Judges.

NEWTON, Justice.

This is an action for damages for personal injuries sustained in an automobile accident. Plaintiff was a guest passenger in an automobile operated in a northerly direction by the defendant Rose Scapellato. The accident occurred at an intersection controlled by automatic, electrically operated traffic lights. The defendant Gau, acting within the course and scope of his employment by the defendant, Byers Transportation Company, was driving west. At the conclusion of plaintiff's evidence, the court dismissed the action as to the defendant Scapellato. At the conclusion of the trial, a verdict was returned and judgment entered for the remaining defendants. We affirm the judgment of the district court.

Plaintiff's evidence reflects the foregoing facts. In addition, it shows that the Scapellato car, driven at a reasonable rate of speed, approached the intersection, stopped for a red light, and then proceeded. The driver states she did not see the Gau car prior to the impact and her car was struck on the right side. Plaintiff also called defendant Gau who stated he entered the intersection at a speed not exceeding 20 miles per hour; he saw the Scapellato car when a short distance from the intersection; and the light was green for westbound traffic. On seeing the Scapellato car entering the intersection, he applied his brakes and left skid marks 20 feet in length. Her car was going about 20 miles per hour. The plaintiff testified that the Scapellato car stopped for a red light at the intersection and entered it when the light changed to green. She was going about 15 miles per hour at the time of the accident. A police officer stated that the Gau car left 31 feet of skid marks and was told by Gau he had been going 25 miles per hour. He also stated that defendant Scapellato said she was going 5 to 10 miles per hour.

On this state of the record, the court sustained the motion of the defendant Scapellato to dismiss the case as to her. The evidence is barren of any proof of negligence on the part of this defendant except for the statement of the defendant Gau regarding right-of-way made in contradition of all the other witnesses, including the plaintiff herself. In other words, the only evidence of negligence on the part of defendant Scapellato is the evidence of Gau to the effect that she ran a red light and this is denied by plaintiff's own testimony. Ordinarily "* * * a party is entitled to the benefit of the testimony of other witnesses in contradiction of this own, wherever his own is not of the character of a judicial admission, and concerns only some evidential or constituent circumstance of his case. This is especially so as to the circumstances of an accident or similar event, because in such a case the party's testimony is especially subject to inexactness of observation and memory." Vermaas v. Heckel, 170 Neb. 321, 102 N.W.2d 647.

On the other hand, this court has held that: 'Where a party testifies clearly and unequivocally to a fact which is within his own knowledge, such testimony may be considered as a judicial admission. That rule has particular application where the party so testifying made no effort to retract, qualify, or otherwise explain the positive force of his own evidence.' Southwestern Truck Sales & Rental Co. v. Johnson, 165 Neb. 407, 85 N.W.2d 705.

In the present instance, plaintiff's petition alleges that defendant Gau entered the intersection against a red light, but does not allege that defendant Scapellato negligently did so or violated any rule pertaining to right-of-way. Under these circumstances it appears plaintiff was not entitled to a submission of the question of gross negligence on the part of the defendant Scapellato and that the court was correct in dismissing the case as to this defendant. Furthermore, violation of a stop light, standing alone, is not sufficient to prove gross negligence. See, Callen v. Knopp, 180 Neb. 421, 143 N.W.2d 266; Brugh v. Peterson, 183 Neb. 190, 159 N.W.2d 321, 29 A.L.R.3d 236.

After plaintiff rested, the defendant Gau adduced evidence indicating that he had the right-of-way with a green light. Plaintiff then sought to introduce, by the testimony of other witnesses, evidence that Gau had entered the intersection against a red light. The court sustained an objection made on the ground that the evidence offered was improper rebuttal testimony. Plaintiff alleged this fact as one ground of negligence and evidence of it was part of her case-in-chief. The admission in rebuttal of testimony which should have been offered in chief rests in the sound discretion of the court. See, McClellan v. Hein, 56 Neb. 600, 77 N.W. 120; Hutchinson v. Western Bridge & Constr. Co., 97 Neb. 439, 150 N.W. 193; Mutz v. Sanderson, 94 Neb. 293, 143 N.W. 302.

The court, in its instructions, gave the following: 'No person shall drive or operate a vehicle upon a street at a rate of speed greater than is reasonable and prudent, having due regard fof the traffic, surface, width, and condition of the road, and the hazard at intersections.' The jury was not instructed that plaintiff charged defendant Gau with negligence due to unreasonable speed. There is no contention that defendant Gau's speed was in violation of the speed limit, only that it was an 'unreasonable and excessive rate of speed under the circumstances then existing of (25) miles per hour, whereby he forfeited any right of way he might otherwise have had.' The allegation is in a manner of speaking double-barreled but appears to be aimed at the question of right-of-way rather than that of negligent speed. At the time of this accident, section 39--751, R.R.S.1943, governing right-of-way at open or unprotected intersections provided that a driver traveling at an unlawful speed forfeited the right-of-way. That subsection of the statute has since been deleted. It was not applicable in the present case. There is no evidence of unlawful, excessive, or unreasonable speed on the part of defendant Gau. He was driving at...