Springer v. Bohling

• Decision Date: 03 May 2002
• Docket Number: No. S-00-918.,S-00-918.
• Citation: 643 N.W.2d 386,263 Neb. 802
• Parties: Valerie Ann SPRINGER, Appellee, v. Todd BOHLING, Appellant.
• Court: Nebraska Supreme Court

643 N.W.2d 386

263 Neb. 802

Valerie Ann SPRINGER, Appellee, v. Todd BOHLING, Appellant.

No. S-00-918.

Supreme Court of Nebraska.

May 3, 2002.

Joel D. Nelson, of Keating, O'Gara, Davis & Nedved, P.C., L.L.O., for appellant.

Rolf Edward Shasteen, Lincoln, for appellee.

WRIGHT, CONNOLLY, GERRARD, McCORMACK, and MILLER-LERMAN, JJ.

GERRARD, J.

NATURE OF CASE

This case is before our court for a second time. The appellee, Valerie Ann Springer, was injured when the bicycle she was riding was struck by an automobile driven by the appellant, Todd Bohling. Springer had sued Bohling, but, pursuant to a jury verdict, the district court entered judgment for Bohling based upon Springer's contributory negligence. Springer appealed. See Springer v. Bohling, 259 Neb. 71, 607 N.W.2d 836 (2000). This court reversed the judgment and remanded the cause for a new trial. After a second trial, a jury verdict was returned for Springer and both parties filed posttrial motions for new trial. Springer claimed that the damages awarded by the jury were inadequate, while Bohling claimed that the jury should have been instructed on contributory negligence. The district court granted Springer's motion, but denied Bohling's. Bohling appeals the district court's order granting a new trial. For the following reasons, we affirm as modified.

FACTUAL BACKGROUND

The accident in which Springer was injured occurred near the intersection of 14th and Court Streets in Lincoln, Nebraska. This is a T-shaped intersection, such that a vehicle approaching from the east on Court Street must turn either north or south onto 14th Street. Court Street has three lanes at the 14th Street intersection: one lane for vehicles traveling east, one lane for vehicles turning north onto 14th Street, and a left-turn lane for vehicles turning south onto 14th Street. Vehicles already traveling north or south on 14th Street are not required to stop at this intersection, but there is a stop sign facing traffic approaching from the east on Court Street.

The circumstances of the accident were set forth as follows in our opinion in Springer:

Springer was riding her bicycle home from work at about 5 p.m. on October 15, 1996. Springer rode south on the sidewalk parallel to 14th Street, approaching the intersection of 14th and Court Streets. Springer rode to a private driveway on 14th Street, across from and slightly to the south of Court Street. Springer stopped there and waited for traffic on 14th Street to clear so that she could cross 14th Street and proceed east on Court Street.

As Springer waited, she saw Bohling's vehicle sitting at the stop sign on Court Street in the left-turn lane. The vehicle's left turn signal was on and Bohling was evidently waiting to turn left from Court Street to proceed south on 14th Street. Springer waited between 2 to 5 minutes for traffic to clear on 14th Street.

When the traffic on 14th Street cleared, Springer looked at Bohling's vehicle and confirmed that it was still stationary. Springer then looked across 14th Street where she intended to cross, and rode onto 14th Street. About halfway across the street, Springer looked to her right, and then back to her left toward Bohling's vehicle. Springer did not see the vehicle pull away from the stop sign or begin its turn. When Springer looked back to her left, Bohling's vehicle was already coming toward her. Bohling's vehicle struck Springer, and she was injured. The evidence was undisputed that Bohling never saw Springer prior to impact.

259 Neb. at 72-73, 607 N.W.2d at 837-38.

PROCEDURAL BACKGROUND

At the first trial, the district court entered a verdict for Bohling based upon a finding by the jury that Springer had been contributorily negligent. Springer appealed, assigning that the district court erred in instructing the jury regarding whether Springer failed to yield the right-of-way and that the evidence was insufficient to support the verdict. In support of the second assignment of error, Springer's argument was essentially that there was no evidence to support a finding of contributory negligence.

We reversed the judgment and remanded the cause for a new trial, determining that

based upon the evidence presented, it is clear that the duty to yield the right-of way was not Springer's, but Bohling's. Since there was no evidence sufficient to support a finding that Springer failed to yield the right-of-way, it was error for the trial court to instruct the jury regarding Springer's duty to yield.

Springer v. Bohling, 259 Neb. 71, 76, 607 N.W.2d 836, 840 (2000). Since the cause was to be remanded for a new trial in any event, we specifically declined to address Springer's second assignment of error.

The present appeal is taken from the second trial in the district court. At the second trial, Bohling argued contributory negligence, based upon a theory different from the failure to yield the right-of-way, but the district court declined to give a contributory negligence instruction. The jury returned a verdict for Springer in the amount of $2,908.

Both parties filed motions for new trial. Bohling argued that the jury should have been instructed on contributory negligence. Springer argued that the damages were clearly inadequate. The district court denied Bohling's motion, but granted Springer's. The district court noted that during deliberations, the jury submitted written questions to the court, inquiring about whether Springer's damages had been paid by insurance. The district court also noted that the jury's verdict was at least $2,000 below Springer's stipulated medical expenses resulting from the accident. The district court thus vacated the verdict and restored the case to the active trial docket.

ASSIGNMENTS OF ERROR

Bohling assigns, restated, that the district court erred in (1) failing to give a contributory negligence instruction because Springer was contributorily negligent by (a) failing to maintain a proper lookout and (b) entering a place of peril or danger without due care and (2) sustaining Springer's motion for new trial because the jury's verdict was inadequate.

STANDARD OF REVIEW

A motion for new trial is addressed to the discretion of the trial court, and the trial court's decision will be upheld unless it is based upon reasons that are untenable or if its action is clearly against justice or conscience, reason, and evidence. Holmes v. Crossroads Joint Venture, 262 Neb. 98, 629 N.W.2d 511 (2001).

Whether the jury instructions given by a trial court are correct is a question of law. See Russell v. Stricker, 262 Neb. 853, 635 N.W.2d 734 (2001). When reviewing questions of law, an appellate court has an obligation to resolve the question independently of the conclusion reached by the trial court. Smith v. Fire Ins. Exch. of Los Angeles, 261 Neb. 857, 626 N.W.2d 534 (2001).

ANALYSIS

We initially note that this appeal is presented in a somewhat unusual procedural posture in that Bohling is claiming on the one hand that a new trial should be ordered and claiming on the other hand that the district court erred by ordering a new trial. We view Bohling's arguments as being conditional: Bohling is arguing that a new trial should be ordered at which the jury is instructed on contributory negligence, but if this court should determine that a contributory negligence instruction was properly denied, then the jury's verdict from this trial should be reinstated.

CONTRIBUTORY NEGLIGENCE

Bohling argues that the district court should have instructed the jury on contributory negligence. To establish reversible error from a court's failure to give a requested jury instruction, an appellant has the burden of showing that (1) the tendered instruction is a correct statement of the law, (2) the tendered instruction was warranted by the evidence, and (3) the appellant was prejudiced by the court's failure to give the requested instruction. Paulk v. Central Lab. Assocs., 262 Neb. 838, 636 N.W.2d 170 (2001). Contributory negligence is conduct for which the plaintiff is responsible, amounting to a breach of the duty which the law imposes upon persons to protect themselves from injury and which, concurring and cooperating with actionable negligence on the part of the defendant, contributes to the injury. Corcoran v. Lovercheck, 256 Neb. 936, 594 N.W.2d 615 (1999). The instruction requested and refused in the instant case would have instructed the jury that it could find Springer contributorily negligent in "failing to maintain a proper lookout" and in "moving suddenly from a place of safety to a place of peril or danger."

Intersection right-of-way is a qualified, not absolute, right to proceed through an intersection, exercising due care, in a lawful manner in preference to another vehicle. Dolberg v. Paltani, 250 Neb. 297, 549 N.W.2d 635 (1996). A motorist has the duty to look both to the right and to the left and to maintain a proper lookout for the motorist's safety and that of others. Corcoran, supra. One traveling on a favored street protected by stop signs of which one has knowledge may properly assume, until one has notice to the contrary, that motorists about to enter from a nonfavored street will come to a complete stop as near the right-of-way line as possible and yield the right-of-way to any vehicle approaching so closely on the favored highway as to constitute an immediate hazard if the driver at the stop sign moves into or across the intersection. Id. However, while one may assume, until having warning, notice, or knowledge to the contrary, that others will use a highway lawfully, one must nonetheless keep a proper lookout and watch where one is driving. See Dolberg, supra. The foregoing principles apply to bicyclists as well as drivers of motor vehicles. See Springer v. Bohling, 259 Neb. 71, 607 N.W.2d 836 (2000).

Given the facts established at trial, there was no evidence from which the jury could have determined that Springer failed to keep a proper lookout. W...