Stillwell v. Schmoker, 35428

• Decision Date: 12 July 1963
• Docket Number: No. 35428,35428
• Citation: 175 Neb. 595,122 N.W.2d 538
• Parties: David O. STILLWELL, Appellee, v. Dennis SCHMOKER and Donald Schmoker, Appellants.
• Court: Nebraska Supreme Court

Page 538

122 N.W.2d 538

175 Neb. 595

David O. STILLWELL, Appellee, v. Dennis SCHMOKER and Donald Schmoker, Appellants.

No. 35428.

Supreme Court of Nebraska.

July 12, 1963.

Syllabus by the Court

1. Testimony of witnesses must be confined to concrete facts perceived by the use of their senses as distinguished from opinions and conclusions deducible from evidentiary facts.

2. While an expert will be permitted to express his opinion, or even his belief, he cannot give his opinion upon the precise or ultimate fact in issue before the jury, which must be determined by it.

3. A witness may describe the marks that he observed near the place of the accident. The inference to be drawn from the testimony is solely the province of the jury.

4. An instruction reciting the provisions of statutes regulating and controlling the speed of motor vehicles should include therein all the material applicable statutory limitations and qualifications to enable a jury to observe and understand the duty of drivers at the time and place in question.

5. Although the evidence may be entirely circumstantial as to the rate of speed at which a motor vehicle was operated, it may be sufficient to support a reasonable conclusion reached by the jury on the issue of negligence.

6. Circumstances connected with an accident may be sufficient to overcome direct evidence as to the speed of a motor vehicle.

7. It is the duty of the trial court, without request, to instruct the jury on each issue presented by the pleadings and supported by evidence. A litigant is entitled to have the jury instructed as to his theory of the case as shown by the pleadings and evidence, and a failure to do so is prejudicial.

8. The lawfulness of the speed of a motor vehicle within the prima facie limits fixed is determined by the further test of whether the speed was greater than was reasonable and prudent under the conditions then existing.

9. Negligence is a question of fact and may be proved by circumstantial evidence and physical facts.

10. This is true as to the specifications of speed as well as to any other specifications of negligence claimed.

Tye, Worlock, Knapp & Tye, Kearney, for appellants.

Mitchell, Taylor & Beatty, Kearney, for appellee.

Heard before WHITE, C. J., and CARTER, MESSMORE, YEAGER, SPENCER, BOSLAUGH, and BROWER, JJ.

SPENCER, Justice.

Plaintiff brought this action to recover for personal injuries and property damage sustained in a collision at the intersection of U. S. Highway No. 30 and Avenue E in Kearney, Nebraska. Judgment was rendered for plaintiff, and, upon the overruling of their motion for a new trial, defendants perfected their appeal to this court.

David O. Stillwell, the plaintiff and appellee, will be hereinafter referred to as plaintiff. Defendants and appellants are Dennis Schmoker, a minor, and his father, Donald Schmoker. At the time of the collision Dennis was driving the vehicle which was owned by his father, and any recovery against the father is dependent upon recovery against Dennis. We will hereinafter refer to Dennis Schmoker as defendant, and to both Schmokers as defendants.

The collision occurred shortly after 5 p. m., on December 2, 1961. U. S. Highway No. 30 is 60 feet 9 inches wide, runs east and west, and is divided between intersections by an 8 foot 9 inch concrete median strip, with two lanes of traffic both east and west. Each lane is 13 feet wide and they are divided by a white stripe. The median strip on the west at this intersection is 16 feet 4 inches east of the west curb of Avenue E. Plaintiff was driving west on U. S. Highway No. 30. Defendant had come from the west on U. S. Highway No. 30, and had either made or was in the process of making a left-hand turn when the collision occurred. The posted speed limit for the area is 35 miles per hour.

An officer who investigated the collision testified that when he arrived at the scene, the two cars had the westbound traffic lanes blocked. Plaintiff's car, a 1961 Valiant, was across the south lane of the westbound traffic headed north, and defendant's car, a 1953 Ford, was on an angle against the curb in the north lane, but the record does not disclose the direction in which it was headed. The concentration of debris was 23 feet south of the north curb and 22 feet 9 inches east of the west curb, or in the northwest quadrant of the intersection. There were no brake or skid marks visible. It was the officer's testimony that both drivers told him they did not see the other car. Plaintiff testified he might have told the officer he did not see the defendant. Defendant testified he did not remember telling the officer he had not seen the plaintiff. From the exhibits it is evident that the front bumper of the plaintiff's car came in contact with the right front fender of the defendant's car, directly above the right front wheel.

Defendants set out 18 assignments of error. We comment on only four of them, Nos. 2, 3, 5, and 11, and will set out only enough of the testimony to understand the points involved. We do not pass on the merits or sufficiency of any of the other assignments.

Plaintiff testified he saw the defendant's car first when he was three houses back from the intersection. Defendant's car was then three car lengths from the intersection. He saw it a second time just before entering the intersection and the defendant had cut the corner and was turning and pulling into the intersection. 'He had made his turn and he was just coming into the intersection.' The collision then occurred. Plaintiff testified he had been driving 25 to 35 miles an hour before going into the intersection. He did not apply his brakes and did not have time to do anything before the impact.

Defendant testified that he was driving between 15 and 20 miles an hour approaching Avenue E; that when he started into the intersection he first observed the plaintiff's car a block away; that he braked his car before going into the intersection and cut his speed down to 10 miles an hour. On cross-examination he testified he was at the edge of the island to the west, ready to make his turn when he first observed the plaintiff's car a block away. He did not look again until he was in the intersection and was crossing the white line dividing the two lanes of westbound traffic. At that time, his car 'had fairly well straightened out, going pretty much north.' He testified plaintiff then had his face turned away and it was pointing down toward the floor board of the car. On the speed of the plaintiff's car, the following testimony of defendant was offered by the plaintiff from defendant's deposition as admissions against interest: 'Q So you couldn't tell from that either, could you, as to his rate of speed? A Oh, somewhat you could. It seemed that he was moving at a faster rate of speed than he should have at that place. Q Well, Dennis, you are not saying that you saw him more than just a few feet before he hit you? A No, I'm not saying that, but he approached me too fast. I don't know, maybe it happens quick, but it seems to me that he hit me at a rather fast speed.'

Defendants' second assignment relates to permitting the investigating officer to testify over objection as to the location of the point of impact. The question asked was as follows: 'Q From your observation of the debris, the positions of the vehicles, and your examination of the scene of the accident, and from your examination of hundreds of accidents in the past, do you have an opinion as to which lane of traffic--the north or the south lane of westbound traffic the collision occurred in? Mr. Knapp: Objected to, no proper and sufficient foundation laid, and calling for the conclusion of the witness. The Court: He may answer. A I would say that it happened in the south lane of the westbound traffic.' The trial court had earlier sustained an objection to a question seeking an opinion of this witness as to the actual point of impact. This question is tarred with the same vice. The physical facts from which the question was to be answered were all presented to the jury. The issue did not call for the opinion of an expert. It was an ultimate fact for the determination of the jury, and the objection should have been sustained.

As we said in Danner v. Walters, 154 Neb. 506, 48 N.W.2d 635: 'One of the objections most frequently raised against the admission of expert opinion testimony is that the opinion offered invades the province of the jury. This objection is indeed the basis of the general rule of evidence that the testimony of witnesses must be confined to concrete facts perceived by the use of their senses as distinguished from opinions and conclusions deducible from evidentiary facts. In many cases it is asserted as a broad general rule, often assumed to be an inflexible rule of law, that while an expert may be permitted to express his opinion, or even his belief, he cannot give his opinion upon the precise or ultimate fact in issue before the jury, which must be determined by it. See, 20 Am.Jur., Evidence, s. 782, p. 653, and cases cited under note 16 thereof; Neal v. Missouri P. R. Co., 98 Neb. 460, 153 N.W. 492; Gross v. Omaha & C. B. Street R. Co., 96 Neb. 390, 147 N.W. 1121, L.R.A.1915A, 742.

'A witness may describe the marks that he has observed near the place of an accident. The inference to be drawn from the testimony regarding such tire marks, skid marks, or scratches is solely the province of the jury.'

Defendants' third assignment is directed at the following portion of instruction No. 1 given by the trial court: 'The evidence in this case estiblishes (sic) that on December 2nd, 1961, at about 5:30 P.M., a collision occured (sic) between an automobile driven by David Stillwell westerly on U. S. Highway 30 in the City of Kearney, and an automobile driven by Dennis Schmoker in an easterly direction and turning left in the intersection of Highway 30 and Avenue 'E'.' (Italics supplied.)

It is def...