Southern v. Willis Shaw Frozen Exp., Inc., 37296

• Decision Date: 30 January 1970
• Docket Number: No. 37296,37296
• Citation: 185 Neb. 117,174 N.W.2d 90
• Parties: May SOUTHERN, Appellant, v. WILLIS SHAW FROZEN EXPRESS, INC., a Corporation, Appellee.
• Court: Nebraska Supreme Court

Page 90

174 N.W.2d 90

185 Neb. 117

May SOUTHERN, Appellant, v. WILLIS SHAW FROZEN EXPRESS, INC., a Corporation, Appellee.

No. 37296.

Supreme Court of Nebraska.

Jan. 30, 1970.

Syllabus by the Court

1. Before evidence is submitted to the jury, the question is not whether there is literally no evidence at all but whether there is evidence so reasonably convincing that the jury can properly proceed to find a verdict for the plaintiff producing it, upon whom the burden of proof was imposed.

2. In determining whether evidence is sufficient to sustain a jury verdict, conjecture, speculation, or mere choice of quantitative possibilities are not proof. The trier of fact must come to the conclusion that there is something more than quantitative possibilities which would lead a reasoning mind to come to one conclusion rather than another.

3. Competent, relevant testimony of unimpeached witnesses should not be held to be contradicted by inferences from circumstantial evidence, unless the circumstances and the natural inferences to be deduced therefrom cannot in reason be reconciled with the conclusion that the direct evidence is true.

Padley & Dudden, Ogallala, for appellant.

Holtorf, Hansen, Kortum & Kovarik, David C. Nuttleman, Gering Thomas M. Shanahan, Ogallala, for appellee.

Heard before WHITE, C. J., and CARTER, SPENCER, BOSLAUGH, SMITH, McCOWN and NEWTON, JJ.

WHITE, Chief Justice.

The district court directed a verdict for the defendant in this action for damages arising out of a collision between a truck trailer and a passenger car on a bridge on U.S. Highway No. 30 near Brule, Nebraska, on June 21, 1964. On appeal we affirm the judgment of the district court dismissing the action.

On the issue presented we review the evidence bearing in mind the traditional rule that all conflicts in the evidence must be resolved in favor of the party against whom the verdict was directed and that such party is also entitled to all reasonable inferences to be drawn from such evidence. At the same time we must bear in mind that the question is not whether there is literally no evidence at all but whether there is evidence so reasonably convincing that the jury can properly proceed to find a verdict for the plaintiff producing it, upon whom the burden of proof was imposed. Raff v. Farm Bureau Ins. Co., 181 Neb. 444, 149 N.W. 52.

On June 21, 1964, the defendant's truck was traveling eastward a short distance to the east of Brule, Nebraska. Behind it at some distance was another truck. Plaintiff, driving a 1963 Mercury 4-door passenger sedan, was traveling east at the same time with her husband in the front seat and her daughter and another passenger in the rear seat. Plaintiff passed the first truck, came back to the south or right side of the road and then engaged in a passing operation of the defendant's truck. Both plaintiff's car and the truck were approaching a bridge 56 feet long and 24 feet wide, and it can be stated with accuracy that the collision occurred between the front end of the truck and the left side and left front of the plaintiff's automobile about 7 feet west of the east end of the bridge. Except for this basic information all of the evidence consists of the direct evidence and testimony of the defendant's witnesses and the circumstantial evidence supplied by the patrolman testifying as to the skid marks and the other physical facts surrounding the accident. The plaintiff herself testified that she was going 50 to 55 miles per hour when she passed the truck, and she remembers passing the truck and coming over to her right to south side of the road and further than that she remembers nothing. Plaintiff's husband was reading a map in the front seat and adds nothing further to the plaintiff's testimony. The same was true of the two witnesses in the rear seat.

James Pepper was the defendant's driver. The highway was level, paved and dry, and the weather was clear. Pepper testified that the plaintiff, coming from the west after passing his truck, turned to the south to return o the eastbound lane of traffic and in doing so lost control of the automobile; skid marks appeared on the pavement; the right rear side of her automobile hit the southwest corner of the bridge abutment or the warning post; and it then careened over into the north or westbound lane of traffic. Seeing an imminent accident he turned his truck to the left into the north or westbound lane of traffic but was unable to avoid hitting the plaintiff's automobile about 7 feet from the east end of the bridge. The brake or skid marks of plaintiff's automobile continued on to the point where the automobile came to rest about 60 feet east of the bridge in the right ditch of the highway. Defendant's truck after the collision continued on to the east, was thrown out of control, and also would up in the right ditch of the highway about 110 feet from the east edge of the bridge, where it was on fire. The truck driver immediately to the rear of defendant's truck testified that as defendant's truck moved to the left into the westbound lane of traffic, he observed the plaintiff's automobile careening and the right rear hitting the southwest edge of he bridge abutment and the vehicle being thrown over of turning into the westbound lane of U.S. Highway No. 30.

The above testimony is undisputed and uncontradicted. The patrolman's testimony is also undisputed and uncontradicted. He testified as to the identification of the various skid and brake marks. Because of the width and the narrowness of the tracks, the skid marks of the plaintiff's vehicle were rather easily identified. They began 88 feet west of the bridge abutment and continued on to where there were 'jagged' marks and a pile of debris about 7 feet from the east edge of the bridge, and then continued on to the point where the plaintiff's car came to rest. Another set of skid marks of the plaintiff's car began at a point about 37 feet west of the west end of the bridge and continued on to the place where the 'jagged' marks...