Tapp v. Blackmore Ranch, Inc., S-95-159

CourtSupreme Court of Nebraska
Citation254 Neb. 40,575 N.W.2d 341
Docket NumberNo. S-95-159,S-95-159
PartiesPatty TAPP and AWC Transportation, Inc., Appellants, v. BLACKMORE RANCH, INC., and Louis J. Fahy, Appellees.
Decision Date27 February 1998

Page 341

575 N.W.2d 341
254 Neb. 40
Patty TAPP and AWC Transportation, Inc., Appellants,
BLACKMORE RANCH, INC., and Louis J. Fahy, Appellees.
No. S-95-159.
Supreme Court of Nebraska.
Feb. 27, 1998.

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Syllabus by the Court

1. Judgments: Appeal and Error. When reviewing a question of law, an appellate court reaches a conclusion independent of the district court's ruling.

2. Jury Instructions: Proof: Appeal and Error. In an appeal based on a claim of an erroneous jury instruction, the appellant has the burden to show that the questioned instruction was prejudicial or otherwise adversely affected a substantial right of the appellant.

3. Jury Instructions: Appeal and Error. All the jury instructions must be read together, and if, taken as a whole, they correctly state the law, are not misleading, and adequately cover the issues supported by the pleadings and the evidence, there is no prejudicial error necessitating a reversal.

[254 Neb. 41] 4. Jury Instructions. A party's right to a fair trial may be substantially impaired by jury instructions that contain inconsistencies or confuse or mislead the jury.

5. Jury Instructions: Proof: Appeal and Error. To establish reversible error from a court's failure 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 failure to give the tendered instruction.

6. Negligence: Motor Vehicles: Highways. It is negligence as a matter of

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law for a motorist to drive his vehicle on a highway in such a manner that he is unable to stop or turn aside in time to avoid a collision with an object within his range of vision.

7. Negligence: Motor Vehicles: Highways. The range of vision rule applies to driving where vision is impaired by storms or weather conditions such as snow, ice, or fog. Such factors are held to be conditions and not intervening causes, and require drivers to exercise a degree of care commensurate with the circumstances.

8. Negligence: Jury Instructions. It is permissible to instruct a jury that a third party who is not a party to the action is negligent as a matter of law.

9. Trial: Negligence: Proximate Cause. The determination of causation is ordinarily a question for the trier of fact.

10. Trial: Negligence: Evidence: Proximate Cause. Where, upon the evidence produced, only one inference can be drawn, it is for the court to decide whether a given act or series of acts is the proximate cause of the injury.

11. Negligence: Proximate Cause: Words and Phrases. "Efficient intervening cause" has been defined as the new and independent conduct of a third person, which itself is a proximate cause of the injury in question and breaks the casual connection between the original conduct and the injury.

12. Negligence: Tort-feasors: Liability. An intervening cause will act to cut off a tort-feasor's liability only when the intervening cause is not foreseeable.

13. Negligence: Motor Vehicles: Highways: Statutes: Evidence: Juries. A prima facie violation of Neb.Rev.Stat. § 60-6,164 (Reissue 1993) is established by presenting evidence that the person charged stopped, parked, or left a vehicle standing upon the main-traveled portion of a roadway. If a prima facie case is established, in order to create a question of fact for the jury, it becomes incumbent upon the person charged to present evidence that he or she did not violate the statute.

14. Directed Verdict: Evidence: Appeal and Error. When a motion for directed verdict made at the close of all the evidence is overruled by the trial court, appellate review is controlled by the rule that a directed verdict is proper only where reasonable minds cannot differ and can draw but one conclusion from the evidence, and the issues should be decided as a matter of law.

15. Negligence: Words and Phrases. Ordinary negligence is doing something that a reasonably careful person would not do under similar circumstances, or failing to do something that a reasonable careful person would do under similar circumstances.

16. Jury Instructions: Pleadings: Evidence. A litigant is entitled to have the jury instructed only upon those theories of the case which are presented by the pleadings and which are supported by competent evidence.

[254 Neb. 42] Robert G. Pahlke and Andrew W. Snyder, of Van Steenberg, Chaloupka, Mullin, Holyoke, Pahlke, Smith, Snyder & Hofmeister, P.C., Scottsbluff, for appellants.

Patrick M. Connealy, Russell W. Harford, Chadron, and Stefan T. Wall, of Crites, Shaffer, Connealy, Watson & Harford, P.C., Omaha, for appellees.



The appellants, Patty Tapp (Tapp) and her employer, AWC Transportation, Inc., who was joined for subrogation purposes, brought this negligence action seeking damages for injuries sustained by Tapp. Tapp was riding in the sleeper berth of an 18-wheel tractor-trailer driven by her husband, Emmet Tapp, also an AWC Transportation employee, when it collided with the back of a stopped flatbed truck belonging to the appellee Louis J. Fahy, owner of appellee Blackmore Ranch, Inc.

The district court for Dawes County found, and so instructed the jury, that Emmet Tapp, a nonparty to the case, was negligent as a matter of law and was a proximate cause of the accident. The district court then instructed

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the jury regarding "efficient intervening cause." We conclude that this combination of instructions was misleading and prejudiced Tapp's right to a fair trial. Accordingly, we reverse, and remand for a new trial.

The collision occurred on October 6, 1991, at approximately 6:15 p.m. on U.S. Highway 20, 4 1/2 miles west of Chadron in Dawes County, Nebraska. The front of Tapp's westbound 18-wheeler collided with the back of Fahy's 1955 International flatbed truck, which was stopped on the highway.

Highway 20 is a paved two-lane highway. Each traffic lane is approximately 12 feet wide, and there is a 3-foot paved shoulder from the outside of each fog line to the edge of the pavement. A guardrail runs along the north side of the highway, 2 to 3 feet north of the outside edge of the pavement. Just north of the guardrail is an embankment.

[254 Neb. 43] As Highway 20 leaves Chadron, it runs in a westerly direction and then begins turning south so that at the scene of the collision, it is running generally from the northeast to the southwest. There is a small rise in the highway, the crest of which is four-tenths of a mile east of the scene. From the crest of the rise, the highway slopes down and then begins a gradual upward slope toward the scene.


Fahy was accompanied by Frank Carlson on a trip from the Fahy family ranch near Mannville, Wyoming, to a ranch near Chadron. They were followed by Fahy's wife, who was driving a pickup. Upon reaching the ranch, five head of cattle were loaded onto the flatbed truck and three head onto the pickup. The group then began the return trip to Wyoming. As Fahy and Carlson were entering Chadron, Carlson heard a thumping sound. Fahy stopped at a truckstop and checked the tires and lugnuts. He was able to turn one of the nuts on the right outside dual one-eighteenth to one-sixteenth of a turn. The group then continued traveling west on Highway 20.

As Fahy and Carlson drove over the rise in Highway 20 and started up the gradual slope to the west, they heard a grinding noise and felt a vibration. Fahy took his foot off the accelerator, but did not apply the brakes because he thought the sound might be a brake problem, and let the truck coast to a stop, pulling toward the right side of the highway. The truck stopped in a position that covered one-half to two-thirds of the westbound lane. Upon inspection, Fahy discovered that the right rear duals were loose, the threads on the lugbolts to the inside dual were stripped, and the bolts had "beat out" holes in the wheel frame.

Fahy admits he could have pulled his truck closer to the guardrail. However, Fahy testified he pulled the truck over as far as he could but still have room to work on the right side of the truck. Fahy stated he decided not to move the truck because he was afraid the rear tire would come off and the truck would either tip over or the cattle would be thrown out of the truck and run loose on the highway. Instead, Fahy decided to warn approaching traffic by activating the truck's hazard lights, and he sent his wife back to Chadron to get help.

[254 Neb. 44] David Mack was traveling west when he saw Fahy's truck "from about a quarter mile away" and stopped to help. He offered to pull Fahy's truck off the road using a towrope, but Fahy declined. Mack drove to the top of the hill, 1,000 to 1,500 feet west of Fahy's truck, turned around, parked on the south side of the highway, and activated the 9-inch amber beacon on top of his truck. The three men then set up a warning system in which Fahy stood 50 to 100 yards behind his truck. When westbound vehicles came over the rise to the east, Fahy would step out onto the highway, wave his arms, and direct the traffic around his truck. Carlson stood beside Fahy's truck on the south side of the highway and directed vehicles around it. Mack stopped eastbound traffic and made sure that the way was clear before permitting the traffic to pass.

According to Carlson, several trucks and approximately 50 to 60 cars passed safely through the scene while the truck was disabled;

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about 30 from the east, and 20 from the west. According to Mack, 10 to 15 vehicles passed safely through the scene from west to east and the same number from east to west. Fahy thought vehicles were coming through at the rate of about one per minute.

When Fahy saw the truck Tapp was riding in come over the rise, he was...

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