Segebart v. Gregory

• Decision Date: 11 March 1955
• Docket Number: No. 33626,33626
• Parties: Donald SEGEBART, by his Guardian and Next Friend, Louis Segebart, Appellant, v. Oddie GREGORY, Appellee.
• Court: Nebraska Supreme Court

Page 315

69 N.W.2d 315

160 Neb. 64

Donald SEGEBART, by his Guardian and Next Friend, Louis Segebart, Appellant, v. Oddie GREGORY, Appellee.

No. 33626.

Supreme Court of Nebraska.

March 11, 1955.

Syllabus by the Court.

1. It is not error to refuse to give a requested instruction containing abstract principles of law where no effort is made in the instruction requested to apply the rule to the particular evidence and issues of the case to which it is claimed it is applicable.

2. It is not error to fail to instruct relative to the purchasing power of money. It is not a proper subject for an instruction.

3. Error cannot be predicated upon the giving of an instruction substantially similar to one requested by the party seeking to reverse the judgment.

4. In the framing of an instruction, it is not necessary that a trial court follow the exact language used by this court in stating a rule of law.

5. It is a fundamental rule applicable to all appellate proceedings that the record of a court where a matter originated or was tried when properly authenticated imports absolute verity and cannot be contradicted, varied, or changed by oral testimony or any extrinsic evidence.

6. A party is not permitted to proceed with the trial without objection and speculate on the outcome of the jury's verdict, and, if unfavorable, contend that a mistrial should have been declared, when he did not ask for the same at the time.

7. If the jury finds the defendant in a personal injury action is not chargeable with negligence an error relating to the subject of damages is necessarily harmless.

Charles A. Fisher, Chadron, Ernest A. Raun, Denison, Iowa, Alfred D. Raun, Pender, Ronald K. Samuelson, Walthill, for appellant.

Stubbs & Metz, Alliance, A. W. Crites, Chadron, for appellee.

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

SIMMONS, Chief Justice.

This is an action to recover damages for personal injuries arising out of the collision of two automobiles on a highway at night. We had the case here in Segebart v. Gregory, 156 Neb. 261, 55 N.W.2d 678, 683, following the sustaining of a motion for a directed verdict for the defendant. The cause was remanded for a new trial. The matter was tried to a jury resulting in a verdict and judgment for defendant. Plaintiff appeals, assigning and arguing error here in several particulars.

We affirm the judgment of the trial court.

The general factual picture is set out in our former opinion. In summary, a car in which plaintiff was riding proceeded east along a poorly maintained highway on a rainy, dark night, turned to avoid a chuck hole in the pavement, and ran into the car of the defendant, resulting in severe personal injuries to the plaintiff.

At this trial, the evidence is positive that defendant's car was not in motion, and was headed west with two wheels off the black-top pavement on the north side of the road. It had been so located for several minutes. The black-top pavement was 20 to 22 feet wide at that point. The evidence is also positive that the car in which plaintiff was riding moved from the south half of the road over into the north half and ran head-on into defendant's car, striking defendant's car in front, but to the south half thereof. The evidence as to lights on defendant's car is in dispute. Plaintiff's witnesses testified that they saw no lights. Defendant's witnesses testified that the front parking lights of his car were on and operating.

Plaintiff requested an instruction to the effect that if the jury found that defendant parked or operated his car on the paved portion of the highway without lights or other warning on a dark night when it was raining, that it would constitute gross negligence. The trial court refused the request.

Plaintiff assigns and argues that the refusal to give the instruction was error.

Plaintiff relies upon the language quoted in our former opinion, to wit: 'This court has said that it is gross negligence to leave an unlighted motor vehicle upon the highway on a dark night without warning to protect approaching travelers.' Segebart v. Gregory, supra. We were there determining whether the evidence was sufficient to present a jury question under a rule which required that all facts be resolved in favor of the plaintiff. There was no conflict in the evidence at that time as to defendant's lights. The evidence was that there were no lights on the car. Here there is a conflict in the evidence as to that question.

The statement appears to have originated in Giles v. Welsh, 122 Neb. 164, 239 N.W. 813, and thereafter in Monasmith v. Cosden Oil Co., 124 Neb. 327, 246 N.W. 623, and subsequent cases dealing generally with what constituted gross negligence under the comparative negligence statute. The correct construction of the statement is suggested in Anderson v. Robbins Incubator Co., 143 Neb. 40, 8 N.W.2d 446, 450, wherein we said that in the two cases above cited we held: '* * * that leaving a truck on the highway without any flares or lights whatsoever was sufficient to permit recovery against the operator thereof for gross negligence.'

The rule relied upon is one which relates to the comparison of different acts of negligence under the comparative negligence statute. That statute is not involved here.

The trial court properly refused to give the requested instruction.

Plaintiff next assigns as error the refusal of the trial court to give a requested instruction as follows: 'You are instructed that a traveler on a public highway or roadway may ordinarily occupy and use any part of said highway or roadway he desires when not needed by another whose rights thereto are superior to his own. The rights of another to the superior use of a highway are determined by whether or not he has a legal right to the use thereof as he is then using it.'

The first sentence is an abstract statement of law which appears in several of our opinions. The rule is one which has been applied here in determining the sufficiency of the evidence to go to the jury or to sustain a verdict. It first is so stated and used in the syllabus of Klaus v. Soloman Valley Stage Lines Co, 130 Neb. 325, 264 N.W. 747. Likewise it was so used in Kuska v. Nichols Construction Co., 154 Neb. 580, 48 N.W.2d 682, again in Paxton v. Nichols, 157 Neb. 152, 59 N.W.2d 184, and later in Born v. Estate of Matzner, 159 Neb. 169, 65 N.W.2d 593. No authority is cited to support the second sentence. Just what was intended by the requested instruction and to whom and to what facts it was intended to apply is not clear. It is the rule that it is not error to refuse to give a requested instruction containing abstract principles of law where no effort is made in the instruction requested to apply the rule to the particular evidence and issues of the case to which it is claimed it is applicable. See, 53 Am.Jur., Trial, s. 573, p. 451; 64 C.J., Trial, s. 646, p. 736; 88 C.J.S., Trial, § 379, p. 962.

The trial court instructed the jury as to the statutory provision (section 39-746, R.R.S.1943) as to driving on the right half of the highway unless impracticable and except when overtaking and passing another vehicle.

The instruction as to that matter would seem to be sufficient. We find no error in the refusal to give the tendered instruction.

Plaintiff requested an instruction as to the elements to be considered in measuring the damages that plaintiff suffered, including 'the decreased purchasing power of money with respect to the commodities that are in use by the public generally and that may reasonable (sic) be said to constitute the necessaries of life, * * *.'

Error is claimed because of the refusal of the court to so instruct.

We put aside consideration of the impact on the question of the fact that the jury denied damages in any amount. Juries have the right to take into consideration the purchasing power of money with respect to commodities that are in use by the public generally and may reasonably be said to constitute the necessaries of life. Dunn v. Safeway Cabs, Inc., 156 Neb. 554, 57 N.W.2d 75; Dailey v. Sovereign Camp, W.O.W., 106 Neb. 767, 184 N.W. 920; Johnson v. Schrepf, 154 Neb. 317, 47 N.W.2d 853. From that it does not follow that a court is required to instruct on that subject matter. The value of money is a representative one. It is fixed by the value of the thing or things for which it can be exchanged. Whether that value has depreciated or appreciated with reference to some other period is not material. The value of money, i.e. its purchasing power, is elemental within the knowledge and experience of men generally. It is one of the facts of life which jurors are presumed to know. It is not error for failure to instruct relative to the purchasing power of money. It is not a proper subject for an instruction. Rebholz v. Wettengel, 211 Wis. 285, 248 N.W. 109.

The court instructed the jury that the owner or operator of a motor vehicle was not liable to a guest passenger unless the driver was under the influence of intoxicating liquor or was guilty of gross negligence, and that plaintiff was a guest of Sandoz. There was evidence of the presence of beer in the Sandoz car, although the drinking of intoxicants was denied by all the occupants appearing as plaintiff's witnesses. This instruction relates to the nonliability of Sandoz to the plaintiff. The plaintiff requested an instruction containing the element of Sandoz' nonliability because of the guest statute. The materiality of the instruction is not demonstrated. Prejudice to the plaintiff does not appear. If error, it was one invited by the plaintiff. The rule is: 'Error cannot be predicated upon the giving of an instruction substantially similar to one requested by the party seeking to reverse the judgment.' Jonasen v. Kennedy, 39 Neb. 313, 58 N.W. 122. See, also, Mullally v. Haslam, 106 Neb. 860, 184 N.W. 910; Tighe v. Interstate Transit Lines, 127 Neb. 633, 256...