Styskal v. Brickey

• Decision Date: 19 February 1954
• Docket Number: No. 33459,33459
• Parties: STYSKAL v. BRICKEY.
• Court: Nebraska Supreme Court

Page 854

62 N.W.2d 854

158 Neb. 208

STYSKAL v. BRICKEY.

No. 33459.

Supreme Court of Nebraska.

Feb. 19, 1954.

Syllabus by the Court.

1. Each party to a lawsuit is entitled to have the jury pass upon the evidence without having its effect or importance altered, either as to credibility or value, by the indulgence of the court in remarks to witnesses or comments upon them or their testimony, which may tend either to magnify or diminish it in the jury's estimation.

2. It is the duty of the trial judge to instruct the jury upon the law of the case, whether requested by counsel to do so or or not.

3. It is error to submit issues upon which there is no evidence to sustain an affirmative finding.

4. An instruction which does not limit negligence to that charged in the plaintiff's pleading, but authorizes recovery for negligence generally, is objectionable.

5. When, at an intersection, traffic control signals are in operation or traffic is being directed by police officers, such traffic control signals or directions by police officers shall have precedence over stop signs and are controlling thereof.

6. A 'go' signal at a street intersection confers no authority on the driver of an automobile who receives this signal to proceed across that intersection regardless of other persons or vehicles that may already be within it. It is not a command to go, but a qualified permission to proceed lawfully and carefully in the direction indicated.

7. A motor vehicle having started to cross an intersecting street in accordance with the signal light is ordinarily entitled to complete the crossing notiwthstanding a change in lights.

8. A vehicle entering a street intersection with a traffic light in his favor is under obligation to use due care and to yield the right-of-way to vehicles in the intersection. His right-of-way is subject to the rights of those already in the intersection.

9. Where it is claimed that the conduct of another, not a party to the suit, was the sole proximate cause of the accident such defense is not an affirmative plea in avoidance of plaintiff's cause of action and imposes no burden of proof upon defendant with relation thereto but is one entirely consistent with and provable under the general issue. However, some place in the instructions the jury should be advised that if it should find the sole proximate cause of the accident in which plaintiff was injured was the negligence of the other then its verdict should be for the defendant.

10. The duty of a guest riding in an automobile is to use care in keeping a lookout commensurate with that of an ordinarily prudent person under like circumstances. The guest is not required to use the same degree of care as devolves upon the driver. If the guest perceives danger, or if at certain times and places should anticipate danger, he should warn the driver. Ordinarily the guest need not watch the road or advise the driver in the management of the automobile.

Fraser, Connolly, Crofoot & Wenstrand, Omaha, for appellant.

Cranny & Moore, Omaha, for appellee.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.

WENKE, Justice.

Dorothy L. Styskal commenced this action in the district court for Douglas County against Leonard L. Brickey. It is a tort action arising out of an automobile accident. Plaintiff recovered a verdict and from an order overruling his motion for either a judgment notwithstanding the verdict or a new trial the defendant has appealed.

The accident in which appellee was injured happened shortly after 5 p. m. on Saturday, March 29, 1952. It occurred in the intersection of Twenty-first Street and Railroad Avenue. This intersection is located in South Omaha, Nebraska. Railroad Avenue is a through street carrying U. S. Highways Nos. 73 and 75. At its intersection with Twenty-first Street, Railroad Avenue is surfaced to a width of 64 feet. It has four lanes of travel, two each way, with a parking area at each curb. It runs in a northwesterly and southeasterly direction. Twenty-first Street is surfaced to a width of 24 feet and runs north and south, consequently it intersects Railroad Avenue at an angle. Twenty-first Street ends with Railroad Avenue but the intersection is completed by a slight jog to the east to connect with Gilmore Avenue which extends south from Railroad Avenue. Traffic at the intersection is controlled by two automatic signals. One signal is located just south of the south curb of Railroad Avenue at a point approximately 5 feet west of the west curb line of Twenty- first Street if it was extended across Railroad Avenue. The other is just north of the north curb of Railroad Avenue at a point where the east curb line of Gilmore Avenue would intersect the north curb of Railroad Avenue if the former was extended across Railroad Avenue. The traffic signal on the north side of Railroad Avenue is 137 feet east of the east curb line of Twenty-first Street, thus making it necessary for a car traveling northwest on Railroad Avenue to travel that distance, after passing this traffic light, in order to reach and enter the actual intersection of Twenty-first Street and Railroad Avenue. At the time of the accident appellant was driving his 1950 Chevrolet sedan toward the northwest on Railroad Avenue in the outer lane for travel. At the same time Louis Styskal, appellee's father, was driving his 1933 Ford coach south on Twenty-first Street. Appellee was riding with her father, sitting on the right-hand side of the front seat. The impact of the two cars occurred in the intersection in the outer lane of traffic for west-bound cars. The Styskal car ran into the right side of appellant's car.

The first question presented is, did the conduct of the trial judge prevent appellant from having a fair trial? This question relates itself primarily to the language used by the trial judge in ruling on the admissibility of the testimony of several of appellant's witnesses and to voluntary comments of the trial judge relating thereto.

In this regard we have said: 'In jury trials the credibility of a witness and the weight of his testimony are matters for the jury and not for the court. As stated in 64 C.J. 90: 'In accordance with the general rule that the judge presiding at a trial must conduct it in a fair and impartial manner, he should refrain from making any unnecessary comments or remarks during the course of a trial which may tend to a result prejudicial to a litigant or are calculated to influence the minds of the jury. A remark or comment which is shown to be prejudicial to the rights of the party complaining, or which is such that it may be assumed prejudice will result therefrom, is fatal to the validity of the trial; * * *.' And as stated in Abbott, Civil Jury Trials, 5th Ed., 1082: 'Each party is entitled to have the jury pass upon the evidence without having its effect or importance altered, either as to credibility or value, by the indulgence of the court in remarks to witnesses or comments upon them or their testimony, which may tend either to magnify or diminish it in the jury's estimation.'' Langdon v. Loup River Public Power Dis., 144 Neb. 325, 13 N.W.2d 168, 171.

"In the trial of a cause before a jury, improper comments of the trial judge from the bench may be prejudicially erroneous where they tend to discredit a witness and his testimony.' McCulley v. Anderson, 119 Neb. 105, 227 N.W. 321, 322. And as stated in Re Estate of Strelow, 117 Neb. 168, 220 N.W. 251, 254: '* * * under our practice the jury are the sole judges of the credibility of the witnesses, and the weight to be given their testimony. Hence, it is our conclusion that such remark made by the trial judge was without the province of the court, and was erroneous and prejudicial.' See, also, Langdon v. Loup River Public Power District, 144 Neb. 325, 13 N.W.2d 168. Judges should be careful in jury trials and refrain from commenting upon witnesses or their testimony for each party is entitled to have the jury pass upon the evidence without having its effect or importance altered, either as to credibility or value.' Stoffel v. Metcalfe Construction Co., 145 Neb. 450, 17 N.W.2d 3, 8.

We have come to the conclusion that the record leaves no doubt of the fact that appellant did not have a trial of his rights in the fair and impartial manner that our system of jurisprudence contemplates. Having come to this conclusion it would serve no useful purpose to quote the numerous comments of the trial judge that seriously reflect on the credibility of appellant's witnesses and the weight of their testimony.

Having come to the conclusion that a new trial must be had, we come next to the question of whether or not appellant's motion for a judgment notwithstanding the verdict should have been sustained. For the purpose of determining this issue we must apply the following principles in considering the evidence adduced:

'A motion for directed verdict or for judgment notwithstanding the verdict must, for the purpose of decision thereon, be treated as an admission of the truth of all material and relevant evidence submitted on behalf of the party against whom the motion is directed. Such party is entitled to have every controverted fact resolved in his favor and to have the benefit of every inference that can reasonably be deduced from the evidence.' Stark v. Turner, 154 Neb. 268, 47 N.W.2d 569, 570.

'In an action where there is any evidence which will support a finding for a party having the burden of proof, the trial court cannot disregard it and direct a verdict against him.' Stark v. Turner, supra.

Considering the evidence in this light we think it would support a jury's finding that appellant was guilty of one or more of the following specifications of negligence set forth in appellee's petition: '* * * That the Defendant violated the mandate of a red signal light governing him and directing him to stop, and ran through said red...