Sears v. Mid-City Motors, Inc.

• Decision Date: 22 January 1965
• Docket Number: MID-CITY,No. 35683,35683
• Citation: 178 Neb. 175,132 N.W.2d 361
• Parties: Pearl F. SEARS and Ruth F. Burke, Appellees-Cross-Appellants, v.MOTORS, INC., a Corporation, Appellant, Impleaded with Samuel I. Rothenberg and Jack Levey, a co-partnership, d/b/a Service Junk Company, Appellees.
• Court: Nebraska Supreme Court

Page 361

132 N.W.2d 361

178 Neb. 175

Pearl F. SEARS and Ruth F. Burke, Appellees-Cross-Appellants, v. MID-CITY MOTORS, INC., a Corporation, Appellant, Impleaded with Samuel I. Rothenberg and Jack Levey, a co-partnership, d/b/a Service Junk Company, Appellees.

No. 35683.

Supreme Court of Nebraska.

Jan. 22, 1965.

Opinion Withdrawn 136 N.W.2d 428.

Syllabus by the Court

1. In an action for damages predicated on negligence the burden of proof is on the plaintiff to adduce evidence that the neglect charged either alone or in connection with other acts was the proximate cause of the damages.

2. Negligence is never presumed, and it cannot be inferred from the mere fact that an accident happened.

3. The burden of establishing a cause of action by circumstantial evidence requires that such evidence, to be sufficient to sustain a verdict or require submission of a case to a jury, shall be of such character and the circumstances so related to each other that a conclusion fairly and reasonably arises that the cause of action has been proved.

4. The burden of a plaintiff, relying on circumstantial evidence to sustain a cause of action for damages, does not require him to exclude the possibility that damages flowed from some cause other than the one on which he relies.

5. If circumstantial evidence is susceptible of any reasonable inference inconsistent with an inference of negligence on the part of the party charged, it is insufficient to sustain the charge or to require submission of the issue to a jury.

6. In a case where reasonable minds may draw different conclusions as to whether or not acts of negligence charged have been proved, a question for determination by a jury is presented.

7. It is not the office of an expert witness to give his conclusions of the ultimate fact to be determined, but it is for the court to decide whether there is sufficient evidence thereof to submit to the jury and for the jury to make its decision in case it is submitted to it.

8. In absence of opposing evidence or in light of surrounding circumstances, admission against interest may be sufficient to establish fact admitted, but other evidence in the case may render the admission wholly insufficient to establish such fact.

9. To be competent as an admission against interest a statement must be one of fact, and a statement which is a mere opinion or conclusion or a conclusion of law is as a rule inadmissible.

Abrahams, Kaslow, Story & Cassman, Robert C. Oberbillig, Omaha, for appellant.

Haney, Walsh & Wall, Gross, Welch, Vinardi, Kauffman & Schatz, Omaha, for Sears.

Cassem, Tierney, Adams & Henatsch, Omaha, for Rothenberg and others.

Heard before WHITE, C. J., and CARTER, MESSMORE, YEAGER, SPENCER, BOSLAUGH and BROWER, JJ.

BROWER, Justice.

This action was commenced by the plaintiffs, Pearl F. Sears and Ruth F. Burke, in the district court for Douglas County, Nebraska, to recover damages incurred in a fire which burned a building owned by them. The defendants in the action were Mid-City Motors, Inc., a corporation, lessee of the building, and Samuel I. Rothenberg and Jack Levey, a copartnership, doing business as Service Junk Company.

The plaintiff will be so designated. The defendants will be referred to as Mid-City Motors and Service Junk Company, respectively.

The plaintiffs alleged that Mid-City motors was liable because of negligence in the operation of an acetylene torch used in cutting pipes and fittings in a sprinkling system which was in the process of being removed from the premises. The acts of negligence which were in the plaintiffs' petition alleged to be the proximate cause of the fire and which were said to be joint and concurring negligence of both defendants may be stated as follows: In utilizing an acetylene torch in close proximity to the false ceiling and failing to take precautions to prevent the flame, fire, and sparks from coming in contact therewith; in failing to inspect the area where the torch was used to determine whether or not it was safe to use the same and in using said torch in close proximate to said ceiling when the same was inflammable; and in failing to properly use hacksaws or other nonflammable cutting devices or to properly supervise the efforts of the workmen. It is alleged the Service Junk Company was the agent, servant, and employee of Mid-City Motors which had charge and exercised control and supervision over its action. Defendants each answered separately and for the purposes of this opinion the answers may be treated as general denials.

At the time of the fire, defendant's name was Meeks Rent-A-Car Company, a corporation, but its name had been changed to Mid-City Motors prior to the filing of the petition. At times it will be designated as its name was before the fire but in any event it is one and the same.

The matter was tried in the district court before a jury. At the conclusion of all the evidence, the court sustained a motion made by Service Junk Company for a directed verdict and it was dismissed from the action. The court overruled a similar motion on behalf of Mid-City Motors and submitted the action to the jury as to it. A verdict was returned for the plaintiffs in an amount stipulated to be the damage in case the defendants were found liable therefor.

The defendant Mid-City Motors filed a motion for judgment notwithstanding the verdict or for a new trial, and the plaintiffs filed a motion for a new trial assigning error to the court in sustaining the motion of Service Junk Company for directed verdict and dismissal. Both motions being overruled, the defendant Mid-City Motors has brought the matter to this court on appeal. The plaintiffs-appellees have cross-appealed both from the order dismissing the action against Service Junk Company and as to certain rulings of the court on the admission of evidence

The defendant and appellant Mid-City Motors assigns as error to the trial court the overruling of its motion for a directed verdict or dismissal at the close of the plaintiff's evidence, renewed at the close of all the evidence, and from the order overruling its motion for judgment notwithstanding the verdict or for a new trial.

The plaintiffs as cross-appellants assign error to the court in finding the evidence insufficient to submit to the jury the question of liability of the defendant Service Junk Company, and the defendant Mid-City Motors contends the trial court erred in submitting the cause against it to the jury. Therefore, we will first outline the evidence as it affects the cause of action the plaintiffs assert against both of said defendants.

The business of Mid-City Motors consisted of renting cars and trucks for the use of others, storage of those belonging to others, and washing and repairing cars of its own and for others.

The first which caused the damage which was involved in this litigation was discovered a little after 1:30 on the morning of January 10, 1959. The building of the defendant Mid-City Motors in which it occurred is located at the southeast corner of the intersection of Sixteenth and Leavenworth Streets in the city of Omaha. It is a brick building 120 feet square with numerous frame partitions therein. Where it is located apparently the ground slopes rapidly to the south and there is a viaduct on the portion of Sixteenth Street used by the public to its west. Although it is a three-story building the top floor is even with Leavenworth Street on the north and is on an approximate level with the viaduct on the west. The lower floors are to the east of this viaduct and below it but can be reached by the roadway leading down to it from the west. The fire in question occurred on the top floor and apparently and damage to the lower floors was occasioned only by water used in fighting it. This floor is designated generally in the evidence as the top floor and will be so designated herein although with respect to both Leavenworth Street and the viaduct to the west it is the ground floor.

A considerable portion of the two lower floors and a small portion of the top one were occupied by other businesses. The lowest of the floors was used for storage of cars or trucks. The company had some cars for use of customers called U-Drive Cars, using generally 20 in the summertime and 14 in the winter.

At the northwest corner of the building, the top floor had a diagonal front facing the intersection of both streets. On this front was a large overhead door for the entrance of cars and trucks which was operated electrically from the office located on Leavenworth Street to the north on the top floor. A smaller door northeast of it opened into the office. Another small door to the south and west opened into the small portion of the top floor occupied by another business from which a door opened into the remainder of the top floor used by Mid-City Motors and referred to at times as the garage. The garage floor was of cement. The walls were of brick or concrete except the office where they were wood. The garage was separated from the office by a frame partition in which there were glass windows looking into the service area so that those in the office might supervise the operation of the garage. There was a ramp on the top floor leading to the washroom and car rapair shop on the second floor for there was also some space on that floor for company trucks. On the second floor there was a heater for heating water for washing cars and a gas furance for heating the building. There were also automatic gas heaters. Gasoline pumps were outside and inside the building on the top floor. There were storage facilities for cars and trucks on both floors and there were some 30 cars belonging to others in the building of which a considerable number were on the top floor on the night of the fire. The garage had fluorescent lights, some drop cords in the shop washroom, and a skylight. On a balcony on the top floor reached by a hanging stairway were stored...