Sober v. Smith

• Decision Date: 16 July 1965
• Docket Number: No. 35939,35939
• Citation: 136 N.W.2d 372,179 Neb. 74
• Parties: Cornell S. SOBER, Appellee, v. Jacques S. SMITH, Appellant.
• Court: Nebraska Supreme Court

Page 372

136 N.W.2d 372

179 Neb. 74

Cornell S. SOBER, Appellee, v. Jacques S. SMITH, Appellant.

No. 35939.

Supreme Court of Nebraska.

July 16, 1965.

Syllabus by the Court

1. Where the thing which causes injury is shown to be under the control and management of the defendant and the accident is such as in the ordinary course of things does not happen if those who have its management or control use proper care, it affords reasonable evidence, in the absence of an explanation by the defendant, that the accident arose from want of proper care.

2. It is the duty of the trial court to instruct the jury on the issues presented by the pleadings and evidence, whether requested to do so or not, and a failure to do so constitutes prejudicial error.

3. The measure of recovery in all civil actions in this state is compensation for the injury sustained.

4. Where a damaged automobile can be repaired at reasonable cost and restored to substantially its original condition, such cost is the proper measure of damages. Where the automobile cannot be placed in substantially as good condition as it was before the injury, the measure of damages is the difference between its reasonable market value immediately before and immediately after the accident.

John E. Dougherty, York, for appellant.

John A. Wagoner, Samuel Grimminger, Grand Island, for appellee.

Heard before WHITE, C. J., CARTER, BOSLAUGH, BROWER, SMITH, and McCOWN, JJ., and WESTERMARK, District Judge.

BOSLAUGH, Justice.

This is an action for damages arising out of an automobile accident brought by Cornell S. Sober, as plaintiff, against Jacques S. Smith. The jury returned a verdict for the plaintiff in the amount of $1,303.50. The defendant's motion for new trial was overruled and he has appealed.

The accident happened at about 3:30 p. m., on January 5, 1963, on U. S. Highway No. 30 approximately 3 1/2 miles west of Wood River, Nebraska. The highway at this point is straight and level. The weather was clear and the road was dry.

The defendant was driving a 1962 Pontiac station wagon in a westerly direction. He had been to Grand Island, Nebraska, and was taking five wooden storm sash to the lumberyard at Shelton, Nebraska. Three of the storm sash were being carried in the station wagon. The other two had been placed on a baggage carrier or baggage rack on the top of the station wagon. The storm sash projected about 10 inches over the back of the carrier. The sash were fastened to the rack with twine which was slightly smaller than a lead pencil.

The plaintiff was driving a 1962 Buick automobile in a westerly direction and was following the defendant's station wagon. The plaintiff first observed the defendant's station wagon between Alda and Wood River. The station wagon was then about one-quarter of a mile ahead of the plaintiff. When the plaintiff was approximately 3 1/2 miles west of Wood River he noticed that there were storm sash on top of the station wagon and that they were moving around. The plaintiff then drove up to within 100 or 150 feet of the station wagon and blinked his headlights to attract the attention of the defendant. At about this time the fastenings became loose and the storm sash came off the station wagon. The plaintiff turned to the left to avoid one of the windows, and the left front of his automobile collided with the left rear of another automobile operated by Carl Anderson which was proceeding in an easterly direction. This action was brought to recover the damages to the plaintiff's automobile which resulted from its collision with the Anderson automobile.

The plaintiff did not allege specific acts of negligence but relied upon the doctrine of res ipsa loquitur. Where the thing which causes injury is shown to be under the control and management of the defendant and the accident is such as in the ordinary course of things does not happen if those who have its management or control use proper care, it affords reasonable evidence, in the absence of an explanation by the defendant, that the accident arose from want of proper care. Benedict v. Epply Hotel Co., 159 Neb. 23, 65 N.W. 224.

The things which caused the injury in this case were the storm sash. They were under the exclusive management and control of the defendant. If the defendant had exercised proper care, the storm sash would have been fastened to the baggage carrier in such a manner that they would not have come loose while the defendant was driving upon the highway. The facts in this case permit an inference of negligence on the part of the defendant. The trial court was correct in holding that the doctrine of res ipsa loquiter was applicable in this case.

The defendant's answer alleged that the plaintiff was negligent in failing to maintain a proper lookout; in failing to maintain proper control over his automobile; in failing to keep a reasonable distance behind the defendant's station wagon when the plaintiff knew the condition of the road and the cargo on the station wagon; and in failing to give the Anderson automobile the right-of-way.

The plaintiff testified that he was about a quarter of a mile behind the defendant when he first saw the windows on top of the station wagon; that he could tell they were glass and were moving around on top of the car; that he drove up to within 100 or 150 feet of the defendant's car and blinked his lights; that the windows came loose from the station wagon and came 'sailing' down the highway; that he swerved to the left to miss one window; that he then saw the Anderson car approaching from the west; and...