Sikyta v. Arrow Stage Lines, Inc.
| Citation | 470 N.W.2d 724,238 Neb. 289 |
| Decision Date | 07 June 1991 |
| Docket Number | No. 89-091,89-091 |
| Parties | Margaret L. SIKYTA, Appellant and Cross-Appellee, v. ARROW STAGE LINES, INC., Appellee and Cross-Appellant. |
| Court | Supreme Court of Nebraska |
Syllabus by the Court
1. Pleadings: Appeal and Error. In its review, an appellate court disposes of an appeal on the basis of the theory presented by the pleadings on which the case was tried.
2. Jury Instructions: Proof: Appeal and Error. In an appeal based on the claim of an erroneous instruction, the appellant has the burden to show that the questioned instruction was prejudicial or otherwise adversely affected a substantial right of the appellant.
3. Negligence: Evidence: Trial. Before the defense of assumption of risk is submissible to a jury, evidence must show that the plaintiff (1) knew of the danger, (2) understood the danger, and (3) voluntarily exposed himself or herself to the danger which proximately caused the plaintiff's damage.
4. Negligence: Proof: Circumstantial Evidence. A plaintiff's knowledge of danger, as an element in assumption of risk, may be proved by circumstantial evidence, since knowledge is a state of mind or a mental process.
5. Directed Verdict: Waiver: Appeal and Error. A defendant who moves for a directed verdict at the close of evidence in the plaintiff's case in chief and who, when the court overrules the directed verdict motion, proceeds with trial and introduces evidence, waives the appellate right to challenge correctness in the trial court's overruling the motion for directed verdict.
6. Rules of the Supreme Court: Trial: Testimony. The tenor of Neb.Ct.R. of Discovery 32 (rev. 1989) is to prefer "live" testimony, that is, oral testimony adduced in a courtroom within the presence and hearing of a jury.
7. Rules of the Supreme Court: Trial: Evidence: Witnesses. A party seeking to admit or use a deposition on the basis that the witness is unavailable must establish that the requirements of Neb.Ct.R. of Discovery 32(a)(3) (rev. 1989) are satisfied.
8. Rules of the Supreme Court: Trial: Witnesses. A showing of witness unavailability may be made through counsel's statements to the court.
9. Rules of the Supreme Court: Trial: Witnesses: Appeal and Error. Determination that a witness is unavailable, thereby authorizing use of the witness' deposition pursuant to Neb.Ct.R. of Discovery 32(a)(3)(E) (rev. 1989), is within the discretion of a trial court, whose ruling will be upheld on appeal in the absence of an abuse of discretion.
Patrick W. Healey and K. Kristen Witter of Healey, Wieland, Kluender, Atwood, Jacobs & Geier, Lincoln, for appellant and cross-appellee.
Thomas M. White of Fitzgerald, Schorr, Barmettler & Brennan, Omaha, for appellee and cross-appellant.
Margaret L. Sikyta appeals from a judgment in the district court for Lancaster County on the verdict for Arrow Stage Lines, Inc., in her negligence action for bodily injury sustained when she, as a passenger in an Arrow bus, fell on account of the bus driver's sudden application of the bus' brakes. Sikyta claims that reversible error resulted from the instruction on contributory negligence based on Sikyta's standing in the moving bus and submission of assumption of risk as a defense under the circumstances.
On the morning of November 10, 1984, Margaret Sikyta and her husband, Curtis, a "semiretired" contractor, were on a chartered Arrow bus which was carrying passengers from Ashland, Nebraska, to Lawrence, Kansas, for the Kansas-Nebraska football game that day. The bus departed Ashland at 7:30 a.m.
Interior of the Bus.
Passengers entered the bus through its right front door and stairwell, climbed three steps toward the driver's area, and then turned left into the bus' interior, which contained rows of double seats along an aisle which was 18 inches wide. Each bus seat had a shoulder-high back for a seated passenger. The bus' two right front seats, immediately adjacent to the stairwell, were separated from the stairwell by a waist-high metal partition and railing. Margaret and Curtis Sikyta were seated in the right front seats adjacent to the stairwell. Herman W. Campbell was driving the bus and its 42 passengers bound for Lawrence. At the extreme rear of the bus was a bathroom.
The Accident.
The bus was apparently moving in occasionally heavy southbound traffic on the highway. The day was clear with no moisture on the road surface. Some passengers noted that the bus was being driven "fast," perhaps around 65 miles per hour, while others described the bus' operation as nothing unusual. Margaret Sikyta, located in the window seat near the stairwell partition, was reading a morning paper and from time to time glanced at the road ahead. Somewhere in the course of the trip, Margaret observed that the bus had closely followed a car for a "few miles." Curtis, seated next to Margaret, was generally concerned that the bus, somewhere "down the road," might become involved in an accident in view of the traffic and the bus' speed.
Later in the trip, which had now taken approximately 1 1/2 hours, Margaret decided to use the bathroom in the rear of the bus. Since Sikytas' location afforded little space for an exit maneuver from the window seat, it was necessary that Curtis Sikyta stand and move into the aisle so that Margaret might then step into the aisle and proceed to the bus bathroom. After Curtis had positioned himself in the aisle, Margaret stood and turned "sideways," facing the left or driver's side of the bus as she steadied herself by holding the back of the front seat. Meanwhile, from his vantage point in the aisle, Curtis, standing while facing forward and looking through the bus' windshield, was able to see "everything out the front of the bus" and saw that the bus was overtaking a southbound "black car." When the bus was about 18 to 20 feet behind the black car, the car suddenly turned right to leave the highway. In Curtis Sikyta's view of Campbell's driving the bus, "there's no way I could tell whether he's going to hit a car or whether he's going to get slowed down in time or not." Campbell "slammed on" the bus brakes which "just threw everything about in the bus." When Campbell applied the bus brakes "suddenly," Margaret Sikyta "flew around and hit the dash and bounced down the steps head first." Curtis Sikyta grabbed the railing at the stairwell partition, but hit his head and shoulder on the bus windshield. Margaret landed in the stairwell with her head near the door and her feet on the stairs toward the driver. Curtis retrieved Margaret from the stairwell and assisted her to a seat as the bus continued toward Lawrence. As Curtis Sikyta later explained, he had feared that there would be an accident as a result of Campbell's driving, but "[n]ot necessarily that [black] car, with another car." After Curtis had stepped into the bus aisle and had the opportunity to observe the imminence of a collision between the bus and the black car, apparently everything happened so quickly that he was unable to call out a warning to Margaret.
Among the passengers, only Curtis Sikyta noted the bus' proximity to the vehicle being overtaken. One passenger, who had peered forward down the aisle somewhere in the trip, observed that the bus, while overtaking a vehicle, was so close to the overtaken vehicle that the passenger was unable to see the rear license plate on the preceding vehicle. However, this passenger was unable to verify that the overtaken vehicle observed by the passenger was the same vehicle overtaken just before the sudden application of the bus' brakes and could not determine the time interval between the passenger's observation and the application of the brakes which led to Margaret Sikyta's fall, that is, the time element might have been a "second or five minutes later."
Although none of the other passengers, with the exception of Curtis Sikyta, saw Margaret fall into the bus stairwell, some passengers recounted their movements after Campbell "stepped on his brakes." In one passenger's description, "my head went down in my lap and my back hit against the seat in front of me." Another passenger was en route to the bus bathroom and had taken "about two steps when he [Campbell] put on the brakes, and I would have fallen, but I was able to grab ahold of the seat by me."
Depositions and Sikyta's Back Problems.
In her deposition, Margaret Sikyta stated that she had never seen a physician for back pain before the bus accident, although she did state that she had seen Dr. William Fulcher for "pain in [her] hip area once" before the accident.
The morning that trial commenced, the parties' counsel met with the judge and discussed the prospects of a videotape deposition by Dr. Fulcher because the doctor would be performing surgery the next morning. The substance of the discussion was prospective use of Dr. Fulcher's deposition in lieu of the physician's oral testimony adduced through his personal attendance at Sikyta's trial. Regarding a time for obtaining Dr. Fulcher's videotape deposition, the court inquired and commented:
What about this evening?
....
... Well, I mean, this is in lieu of having him here. This is not a discovery deposition, this is a trial deposition....
....
... Would it be possible for us to talk to Dr. Fulcher's office and see if they would schedule that deposition ... at the end of the day today? Is that agreeable with--
....
... With everybody's agreement, I'll talk to him.
The judge, in counsels' presence, then telephoned Dr. Fulcher's office and talked with someone about the prospective deposition but the content of that conversation is undisclosed.
Later that same day, the court remarked to counsel: ...
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