Stewart v. Ritz Cab Co.

• Decision Date: 26 June 1970
• Docket Number: No. 37520,37520
• Parties: Hezikiah D. STEWART, Appellee, v. RITZ CAB COMPANY, Appellant.
• Court: Nebraska Supreme Court

Page 577

178 N.W.2d 577

185 Neb. 692

Hezikiah D. STEWART, Appellee, v. RITZ CAB COMPANY, Appellant.

No. 37520.

Supreme Court of Nebraska.

June 26, 1970.

Syllabus by the Court

1. Where the facts adduced to sustain the issue of negligence are such that reasonable minds can draw but one conclusion therefrom, it is the court's duty to decide the question as a matter of law, rather than submit it to a jury for determination.

2. A verdict should be directed if the evidence is undisputed or if the evidence, even though conflicting, is so conclusive that it is insufficient to justify a verdict or sustain the judgment.

3. Where recovery is not a mere matter of computation and depends upon the intangible and quite subjective elements of pain and suffering and future disability, it will not be interfered with unless it is so excessive and so grossly unresponsive to the evidence as to be indicative of prejudice, passion, partiality, or corruption on the part of the jury.

4. There is no mathematical formula for the transaction of pain and suffering and permanent disability in the terms of dollars and cents.

Gross, Welch, Vinardi, Kauffman, Schatz & Day, Omaha, for appellant.

Schrempp, Rosenthal, Bruckner & McLane, Levin & Gitnick, Omaha, for appellee.

Heard before WHITE, C.J., SPENCER, BOSLAUGH, SMITH, McCOWN, and NEWTON, JJ., and COLWELL, District Judge.

WHITE, Chief Justice.

From a jury verdict and judgment for the plaintiff in the sum of $44,000, arising from a rear-end collision automobile accident, the defendant appeals. The defendant asserts on this appeal, first, that the court erred in directing a verdict for the plaintiff on the issue of liability; and second, that the jury verdict in the sum of $44,000 was excessive. We affirm the judgment of the district court.

The plaintiff's automobile was halted for an intersection traffic light at Twenty-fourth and Binney Streets in Omaha, Nebraska, between 5 p.m. and 6 p.m. on June 12, 1966. It was stopped at the time the accident occurred. Plaintiff's automobile was struck from behind by the defendant's taxi cab. The taxi driver testified that as he was approaching the intersection behind the plaintiff that someone yelled 'taxi' and that he turned to see who had requested his services. His own testimony is that without effective application of his brakes, the taxi ran into the plaintiff's stationary automobile at an estimated speed of 25 miles per hour. The collision sent plaintiff's automobile forward where it came into contact with a third automobile, which was also stopped at the traffic light. The road was paved, dry, no other automobile movement was involved in the collision, there was nothing to impede the taxi driver's vision, and it is not asserted that there were any special factors, except the diversion of attention to a possible customer, to serve as an explanation for the accident. The taxi driver testified as follows: 'Q. In connection with your operation of that cab, Mr. Gordon, I take it that you didn't see the stopped car ahead of you before you hit it? A. No, I didn't. Q. And so you didn't increase your speed any? A. No. Q. In other words, you felt because of the fact that you say someone shouted, shouted at you, you took your eyes off of the road and the first thing you know was that you had hit the car ahead? A. True. Q. And it was stopped, wasn't it? A. Yes. Q. Now then, I take it then you hadn't put on your brakes at all before the time you hit the car? A. I put on my brakes, I had looked around before I hit him, but it was too late. I was estimating 25 miles per hour. Q. When you hit him? A. Yes. Q. So to sum the thing up, as far as the velocity of your cab, it was going 25 miles per hour when it hit the stopped car? A. Sure. Q. And had you been looking ahead rather than over at something else, the accident wouldn't have happened, would it? A. That's right.' (Emphasis supplied.)

It is not asserted or argued that the plaintiff was or could be found guilty of contributory negligence under the facts in this case. He was parked and stopped properly at an intersection traffic light on a paved, dry road with no visibility problems. It appears from the above testimony of the taxi driver himself that it is conclusively established that the proximate cause of this accident was the failure of the taxi driver to keep a proper lookout and control his automobile in order to avoid the collision. It is not necessary, for a solution of liability in this case, to resort to the application of any special doctrine of automobile negligence law. The evidence is direct, undisputed, coming from the lips of the taxi driver himself and conclusively establishes a set of facts that reasonable minds could not reach a different conclusion with reference to the issue of liability. Where the facts adduced to sustain the issue of negligence are such that reasonable minds can draw but one conclusion therefrom, it is the court's duty to decide the question as a matter of law, rather than submit it to a jury for determination. Lindelow v. Peter Kiewit Sons', Inc., 174 Neb. 1, 115 N.W.2d 776; Crawford v. Soennichsen, 175 Neb. 87, 120 N.W.2d 578. A verdict should be directed if the evidence is undisputed or if the evidence, even though conflicting, is so conclusive that it is insufficient to justify a verdict or sustain the judgment. Baxter & Sons v. Sofio, 182 Neb. 599, 156 N.W.2d 141. The defendant argues that the 'momentary' inattention of the taxi driver is sufficient to submit the issue of his negligence to the jury. We do not agree. While the doctrine of momentary inattention or diversion may have some pertinency to the issue of gross negligence in a guesthost relationship, it has no proper application in the circumstances here in a busy city traffic intersection and the close distances and judgments that must be made under crowded traffic conditions. We point out further that by the taxi driver's own admission, he struck the plaintiff's automobile while proceeding at 25 miles per hour into the rear end of a properly stopped automobile. It appears conclusively that the sole proximate cause of this accident was the negligence of the taxi driver under the circumstances and the trial court not only was correct but it was its duty to direct the verdict for the plaintiff in this situation. There is no merit to this...