Segebart v. Gregory, 33207

• Decision Date: 05 December 1952
• Docket Number: No. 33207,33207
• Citation: 156 Neb. 261,55 N.W.2d 678
• Parties: SEGEBART et al. v. GREGORY.
• Court: Nebraska Supreme Court

Page 678

55 N.W.2d 678

156 Neb. 261

SEGEBART et al. v. GREGORY.

No. 33207.

Supreme Court of Nebraska.

Dec. 5, 1952.

Syllabus by the Court.

1. Where a motion for a directed verdict is made the party against whom it is made is entitled to have his evidence accepted

as true by the court and he is further entitled to have all favorable inferences reasonably to be drawn therefrom resolved in his favor.

2. By statute it is required that a motion for a directed verdict shall state the specific grounds of the motion.

3. It is error for the court to sustain a motion for a directed verdict unless the motion contains the specific grounds therefor.

4. It is prejudicial error for the court to sustain a motion for a directed verdict which fails to contain the specific grounds of the motion except where from an examination of the entire record it appears that a verdict would lack evidence to support it or, in other words, if a verdict had been returned it would have been the duty of the court to set it aside because it was without support in the evidence.

5. A variance between a pleading and the evidence adduced to sustain it is not deemed material unless it has misled the adverse party to his prejudice in maintaining his action or defense on the merits.

6. If the matter of variance has not in some appropriate manner been brought to the attention of the trial court, a court of review may decline to consider it.

7. Where a plaintiff is free from negligence or contributory negligence and two or more parties are guilty of negligence in the operation of automobiles causing or proximately contributing to an accident and injury and damage to the plaintiff, and one being the host of the plaintiff and being free from liability because of the guest statute and the other or others not, the one or ones not being host may be held liable for the entire damage.

8. The violation of the statute the design of which is to protect the safety of people in the use of public highways is evidence of negligence.

9. It is gross negligence to leave an unlighted motor vehicle on a public highway on a dark night without warning to protect approaching travelers.

10. If the minds of reasonable men may reasonably differ on the question of whether or not an act producing a collision of automobiles was negligence a question is presented for determination by a jury.

Alfred D. Raun, Pender, Ernest A. Raun, Denison, Iowa, Charles A. Fisher, Chadron, for appellant.

Edwin D. Crites, Chadron, for appellee.

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

YEAGER, Justice.

This is an action in two causes of action. The first is for damages for personal injuries by Donald Segebart by Louis Segebart, his guardian and next friend, plaintiff and appellant, against Oddie Gregory, defendant and appellee. The second is for loss of earnings of the plaintiff which on account of the minority of plaintiff was an action in favor of Louis Segebart, the father of the plaintiff. It was assigned to himself as guardian and prosecuted on behalf of the plaintiff.

The cause was tried and after both parties rested the defendant moved for a directed verdict in his favor which motion was sustained and accordingly a verdict was returned. A motion for new trial was duly filed and overruled, and judgment was entered on the verdict. From the order overruling the motion for new trial and the judgment the plaintiff has appealed.

There are numerous assignments of error in the brief but all of them do not require consideration herein. The pertinent contentions are that there was sufficient evidence upon which to submit the issues presented by plaintiff to a jury for determination; that there was no material variance between the pleadings and proof; and that the motion for directed verdict was not subject to consideration by the court since it was not in from and substance required by law in that it stated no ground for a directed verdict.

A determination of these assignments depends upon certain elements of the petition and an analysis and application of the evidence adduced at the trial. The only evidence adduced was by the plaintiff. After plaintiff rested the defendant rested without introducing evidence and thereafter made his motion for a directed verdict. The rule is applicable, therefore, that the evidence of plaintiff must be accepted as true and he is entitled to all the favorable inferences reasonably to be drawn therefrom. Roberts v. Carlson, 142 Neb. 851, 8 N.W.2d 175; Spaulding v. Howard, 148 Neb. 496, 27 N.W.2d 832; Smith v. Platte Valley Public Power and Irrigation Dist., 151 Neb. 49, 36 N.W.2d 478.

The proved facts are that on the evening of September 9, 1950, plaintiff became a passenger in a Chevrolet automobile which was owned by one Donald Sandoz. Two other boys and two girls became passengers in this automobile. Sandoz with the five others drove aoubt until after midnight when they drove west on what has been designated as 'new' highway No. 20 and turned east on what has been designated as 'old' highway No. 20. When they arrived at a point about one-fourth mile west of Hay Springs the car was stopped on the right or south side of this old highway No. 20. The automobile remained there until about 1:30 or 2 a. m., September 10, 1950. Sandoz was at the wheel, plaintiff was seated in the middle of the front seat, and one of the girls was to his right or on the outside. At about 1:30 or 2 a. m. Sandoz started the automobile. The lights were on. It was raining and the windshield wipers were operating. On this old highway No. 20 apparently maintenance had been long abandoned and it had chuck holes in it making its use difficult and dangerous. The plaintiff said that visibility ahead was about 100 feet. After Sandoz started the automobile he turned it to the left and over onto the north side of the highway where the front end collided with an automobile owned and operated by the defendant. The plaintiff estimated the speed of the Sandoz automobile at the time of collision at 20 to 25 miles an hour. The plaintiff did not see the collision. He had turned around and was at the time talking to someone in the rear seat. He did not see the defendant's automobile or any lights on it before the collision. The two girls gave testimony that there were no lights on the defendant's automobile and that they did not see it. It probably was headed west. Sandoz and the two other passengers were in the service at the time of trial and no evidence was obtained from them. There is no evidence as to whether the defendant's automobile was or was not in motion at the time of the collision. The defendant was in and in charge of this automobile at the time of the collision.

The allegations of the petition are that defendant's automobile was parked on the highway without lights and this is the basis of the charge of negligence against him.

In order to ascertain the correct content of the motion for directed verdict it becomes necessary to point out that it was made in part by reference to a previous motion. The plaintiff rested, whereupon the defendant made the following motion: 'The plaintiff having rested, the defendant moves the Court peremptorily to instruct the jury to return a verdict in favor of the defendant.'

The plaintiff was then allowed to withdraw his rent and adduce additional evidence when he again rested. At that time the defendant renewed his motion in the following terms: 'The defendant reiterates his motion and moves the Court peremptorily to instruct the jury to return a verdict in favor of the defendant.' This motion was overruled.

The defendant then rested and renewed his motion for a directed verdict in the following terms: 'The defendant rests. The defendant having rested, he renews the motion for an instructed verdict in favor of the defendant.'

The following appears as the conclusion of the bill of exceptions:

'By the Court: Gentlemen, on further examination of the pleadings and the evidence, I have decided that there is still a fatal lack of proof in the plaintiff's case, and I haven't any choice except to sustain the motion.

'Mr. Fisher: May I inquire where we have failed, Your Honor?

'By the Court: Well, the proof doesn't correspond with the pleadings. Gentlemen of the Jury, you are instructed as a matter of law that the plaintiff's evidence is insufficient to support a finding that the defendant was guilty of any of the grounds of negligence alleged in plaintiff's petition, and you will therefore return a verdict for the defendant.'

Thus it is observable that the motion does not specify the ground therefor. This is violative of the provision of section 25-1315.01, R.R.S.1943, as follows: '* * * A motion for a directed verdict shall state the specific grounds therefor.'

The ground or grounds on which the motion depends are not made clar. The appellee urges and it is inferable from the quoted statements of the court that it was based on a conclusion that there was variance between the petition and proof and it is also inferable that there was a failure of proof of negligence on the part of the defendant. The theory of the contention of appellee that there was a variance is that the petition charged that the automobile of defendant was parked whereas the proof failed to show whether it was parked or in motion at the time of the collision.

Prior to the enactment of the provsion quoted from section 25-1315.01, R.R.S.1943, a litigant against whom a motion for directed verdict was made was entitled to know either from the motion itself or from the order thereon by the...