Suiter v. Epperson

Decision Date14 October 1997
Docket NumberNo. A-96-379,A-96-379
PartiesDiana J. SUITER, Personal Representative of the Estate of Harry E. Wolstencroft, Decreased, Appellant, v. Donald J. EPPERSON, Sr., d/b/a Credit Car Center, and Anthony D. Routt, Appellees.
CourtNebraska Court of Appeals

Syllabus by the Court

1. Jury Instructions: Proof: Appeal and Error. To establish reversible error from a court's refusal to give a requested instruction, an appellant has the burden to show that (1) the tendered instruction is a correct Statement of the law, (2) the tendered instruction is warranted by the evidence, and (3) the appellant was prejudiced by the court's refusal to give the tendered instruction.

2. Jury Instructions: Appeal and Error. A jury instruction is not reversible error if, taken as a whole, it correctly states the law, is not misleading, and adequately covers the issues.

3. Judgments: Appeal and Error. On questions of law, an appellate court has an obligation to reach independent conclusions irrespective of the decision made by the court below.

4. Motor Vehicles: Right-of-Way. One does not forfeit his right-of-way by driving at an unlawful speed.

5. Motor Vehicles: Highways: Right-of-Way. Drivers required to stop must yield the right-of-way to cross traffic that is so close to the intersection and traveling at such a speed that it is not safe for them to proceed into the intersection.

6. Directed Verdict. The party against whom a verdict is directed is entitled to have every controverted fact resolved in his or her favor and to have the benefit of every inference which can reasonably be drawn from the evidence. If there is any evidence which will sustain a finding for the party against whom the motion is made, the ease may not be decided as a matter of law.

7. Motor Vehicles: Highways: Right-of-Way. A motorist is required to yield the right-of-way to a vehicle traveling on a highway protected by stop signs if the vehicle is close enough to the intersection to pose an immediate hazard.

8. Motor Vehicles: Highways: Negligence. A driver who fails to see another motorist who is favored over him is guilty of negligence as a matter of law when the motorist's vehicle is indisputably located in a favored position.

9. Motor Vehicles: Highways: Words and Phrases. A vehicle is located in a favored position when it is within that radius which denotes the limit of danger, a definition which focuses on the vehicle's geographical proximity to the collision point and the vehicle's favored status under the applicable rules of the road.

10. Jury Instructions: Words and Phrases: Appeal arid Error. The terms "lookout" and "control" are ordinary terms well within the understanding, common sense, and usage of the average juror. It is not error to refuse to give an instruction defining such terms.

11. Negligence: Statutes: Ordinances: Proximate Cause. A violation of a statute or ordinance enacted in the interest of public safety is evidence of negligence, but the rule cannot be made applicable unless there is some causal relation between the violation and an accident.

12. Motor Vehicles: Negligence: Liability. The law requires that an owner use care in allowing others to assume control over and operate his automobile, and holds him liable if he entrusts it to, and permits it to be operated by, or person whom he knows 13. Motor Vehicles: Negligence: Liability: Proof. In order to establish liability on the part of an owner, it must be shown that he had knowledge of the driver's incompetence, inexperience, or recklessness as an operator of a motor vehicle, or that in the exercise of ordinary care be should have known thereof from facts and circumstances with which he was acquainted.

or should know to be an inexperienced, incompetent, or reckless driver, to be intoxicated or addicted to intoxication, or otherwise is incapable of properly operating an automobile without endangering others.

14. Motor Vehicles: Negligence: Sales. Absent knowledge that a prospective test driver is unlicensed, it is not negligence for a car dealer to entrust a vehicle to such a driver, unless the dealer knows or should have known that the prospective driver is incompetent to drive.

15. Motor Vehicles: Negligence: Sales. Current Nebraska law does not impose a duty upon a car dealer to inquire absent knowledge or forewarning, whether a prospective test driver possesses a valid driver's license.

John Thomas, Omaha, for appellant.

Stephen G. Olson II and Suzanne M. Shehan, of Hansen, Engles & Locher, P.C., Omaha, for appellees.

MILLER-LERMAN, C.J., and SIEVERS and MUES, JJ.

SIEVERS, Judge.

INTRODUCTION

This opinion addresses the appropriateness of certain jury instructions--specifically, whether it was proper to instruct, in a motor vehicle accident case, that speeding does not forfeit right-of-way and whether it was error for the trial court to decide that one party was negligent, when the issue of comparative negligence was to be submitted to the jury. We also address the issue of negligent entrustment in the context of a used car dealer's allowing an unlicensed prospective purchaser to take a vehicle for a test drive, when that driver and vehicle are later involved in an accident.

FACTUAL BACKGROUND

On June 9, 1993, Anthony D. Routt went to Credit Car Center to buy a white Oldsmobile 98. Upon arriving, Routt asked to test drive the car and was given the keys by Jerry Epperson, an employee of Credit Car Center. The Oldsmobile chosen by Routt had the words "ICE COLD AIR" and several snowflakes painted on the windshield with white shoe polish. Epperson never asked Routt to present a valid driver's license and did not go on the test drive. At trial, Epperson testified that "we just tell them to be careful and cross your [sic] fingers[.]" Routt's license, at the time of the test drive, was under suspension.

Routt was proceeding north on 60th street, traveling approximately 50 m.p.h. in a 35-m.p.h. zone, when he saw a vehicle, driven by Harry E. Wolstencroft, stopped at a stop sign. The Wolstencroft vehicle was positioned to Routt's right, at the intersection of 60th and Pratt. Sixtieth Street is a primary traffic roadway with two lanes for northbound travel and two lanes for southbound travel. Pratt Street is a two-lane roadway running in an east-to-west direction. The intersection was controlled by stop signs for eastbound and westbound traffic on Pratt Street. Routt testified that he was almost to the Pratt and 60th Streets intersection when the Wolstencroft vehicle sped out in front of him. Routt slammed on his brakes but hit the car, killing Wolstencroft's wife, who was a passenger in the vehicle, instantly. Wolstencroft died a few hours later. After viewing the accident scene, Routt fled.

PROCEDURAL BACKGROUND

Diana J. Suiter, personal representative of Wolstencroft's estate, and his only child, sued Routt in the district court for Douglas County for negligence and alleged that Routt failed to keep a proper lookout, failed to exercise reasonable control, and operated his vehicle at a speed greater than was reasonable and prudent under the conditions. Suiter also sued Donald J. Epperson, Sr., owner of Credit Car Center, by and through his

agent and employee, Jerry Epperson, for negligent entrustment. The jury rendered a verdict in favor of both defendants, specifically finding that Suiter had failed to sustain her burden of proof. Suiter moved for a new trial, which was overruled. Suiter then appealed to this court.

ASSIGNMENTS OF ERROR

Suiter alleges that the trial court erred (1) in instructing the jury that one does not forfeit his right-of-way by driving at an unlawful speed; (2) in refusing to give a definition of "reasonable lookout" and "reasonable control" in its jury instructions; (3) in instructing the jury that Wolstencroft was negligent; (4) in sustaining a motion in limine to exclude any mention of Wolstencroft's wife; (5) in instructing the jury that Wolstencroft was negligent, but not instructing the jury on the effects of the allocation of Wolstencroft's negligence; and (6) in refusing to instruct the jury on Epperson's negligence in entrusting a vehicle to Routt, whose license was suspended.

STANDARD OF REVIEW

To establish reversible error from a court's refusal to give a requested instruction, an appellant has the burden to show that (1) the tendered instruction is a correct statement of the law, (2) the tendered instruction is warranted by the evidence, and (3) the appellant was prejudiced by the court's refusal to give the tendered instruction. State v. Kinser, 252 Neb. 600, 567 N.W.2d 287 (1997); Kent v. Crocker, 252 Neb. 462, 562 N.W.2d 833 (1997).

A jury instruction is not reversible error if, taken as a whole, it correctly states the law, is not misleading, and adequately covers the issues. Scharmann v. Dayton Hudson Corp., 247 Neb. 304, 526 N.W.2d 436 (1995).

On questions of law, an appellate court has an obligation to reach independent conclusions irrespective of the decision made by the court below. State v. McBride, 252 Neb. 866, 567 N.W.2d 136 (1997).

A jury verdict will not be disturbed on appeal unless it is so clearly against the weight and reasonableness of the evidence and so disproportionate as to indicate that it was the result of passion, prejudice, mistake, or some means not apparent in the record, or that the jury disregarded the evidence or rules of law. Mahoney v. Nebraska Methodist Hosp., 251 Neb. 841, 560 N.W.2d 451 (1997); Koster v. P & P Enters., 248 Neb. 759, 539 N.W.2d 274 (1995).

ANALYSIS

JURY INSTRUCTION NO. 10: FORFEITURE OF RIGHT-OF-WAY BY SPEED

Suiter first assigns error to the giving of jury instruction No. 10, which reads, "Nebraska statutes provide: No person shall drive at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing. However, one does not forfeit his right-of-way by...

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