Taulborg v. Andresen

• Decision Date: 08 January 1930
• Docket Number: 26500
• Citation: Taulborg v. Andresen, 119 Neb. 273, 228 N.W. 528 (Neb. 1930)
• Parties: JENS C. TAULBORG, APPELLANT, v. SOPHUS B. ANDRESEN ET AL., APPELLEES
• Court: Nebraska Supreme Court

228 N.W. 528

119 Neb. 273

JENS C. TAULBORG, APPELLANT, v. SOPHUS B. ANDRESEN ET AL., APPELLEES

No. 26500

Supreme Court of Nebraska

January 8, 1930

APPEAL from the district court for Douglas county: JAMES E. RAIT JUDGE. Reversed.

REVERSED.

Syllabus by the Court.

In an action for damages by reason of alleged negligence of another, evidence as to the financial standing of the parties is inadmissible.

Where a plaintiff in a personal injury action makes no attempt to show that the defendant is indemnified from loss by an insurance company, it is not proper for the defendant to offer testimony showing that he is not indemnified by insurance.

The instructions of the court to the jury must be read in open court, and if, after the jury have retired for deliberation the necessity arises for further instructions or communications of any kind concerning the case, the same should be given in open court in the presence of the parties or their counsel.

The operator of a motor vehicle in backing the same onto a street or highway must look backward, not only before he begins his operation, but also while he is in the act of backing, and must give a signal of his intention to back when a reasonable necessity for it exists, in order that he may not collide with or injure those lawfully using such street or highway.

Record examined and held that the supplemental instruction given the jury after it had retired was erroneous and constituted reversible error.

Appeal from District Court, Douglas County; Rait, Judge.

Action by Jens C. Taulborg against Sophus B. Andresen and another. From an adverse judgment, plaintiff appeals. Reversed and remanded for new trial.

Gray, Brumbaugh & McNeil, for appellant.

Edward J. Shoemaker, contra.

Heard before GOSS, C. J., ROSE, GOOD, EBERLY and DAY, JJ., and REDICK and RYAN, District Judges.

OPINION

RYAN, District Judge.

This is an action by Jens C. Taulborg against Sophus B. Andresen and Hazel Andresen for damages resulting from an automobile accident. The plaintiff alleges in his petition that on the 3d day of October, 1926, while he was riding toward Omaha as a passenger in an automobile driven by one Amos Giller, defendants negligently and without warning backed a truck, owned and operated by them, from a place just off the edge of the paving on the right-hand side of the Military highway, in front of and against the car in which the plaintiff was riding; that as a result thereof the plaintiff was seriously injured and suffered damages.

The specific acts of negligence charged against the defendants were their failure to observe a proper lookout for cars approaching from the west along the Military highway, which the defendants knew was a highway upon which cars were almost continually passing, and in their failure to sound their horn or in any manner announce their intention to back the truck onto the highway and in front of the approaching line of traffic.

The defendants' answer was a general denial and an allegation that at the time of the collision the defendants' truck was standing parallel to the pavement, and that it was standing still and was headed in an easterly direction. Defendants further alleged that the plaintiff and the driver of the car in which the plaintiff was riding were negligent, in that they drove at a dangerous rate of speed and did not have the car under control. The reply of the plaintiff was a general denial. At the conclusion of plaintiff's evidence the court upon motion directed a verdict in favor of the defendant Hazel Andresen and dismissed the action as to her. This action is not complained of and is sustained by the evidence.

It appears from the record that the accident occurred a short distance northwest of the city of Omaha, at a place where Seventy-second street intersects the Military highway, and that the Military highway is a paved road connecting the cities of Omaha and Fremont. The defendants were operating a fruit stand near the place where the accident occurred. The evidence is in hopeless conflict as to the manner in which the accident occurred. Plaintiff claims, and introduced evidence tending to show, that the defendant, Sophus B. Andresen, backed his truck onto the paved highway in front of the automobile in which the plaintiff was riding, as it approached from the west. The defendant denies this and introduced testimony to the effect that the automobile in which the plaintiff was riding was being operated at a very high rate of speed, and that as it approached a place opposite to where the truck was standing it swerved off from the pavement and struck the defendant's truck and in this collision the plaintiff was injured.

The plaintiff makes numerous assignments of error, but they may be considered under two general headings: First, misconduct of counsel for the defendants; and, second, errors of law occurring at the trial.

The specific misconduct complained of on the part of defendants' counsel is a reference in his opening statement to the financial condition of the defendants, wherein he referred to them as "living on a rented farm." This same line of conduct was continued in the examination of the defendants as witnesses. Plaintiff further complains that the defendant was permitted to testify that he did not have any insurance on his car at the time the accident occurred.

The alleged error of law complained of consisted in the court submitting to the jury, after they had retired for deliberation, a memorandum, delivered to them in the jury room by the bailiff, being an instruction given by the court defining the term "Proper Lookout," without notice to the parties or their counsel and not in the presence of the parties or their counsel. It appears that the jury retired for deliberation on October 26, 1927, at 9:25 a. m.; that at 2:50 p. m. they sent the following communication to the court: "Honorable Judge Rait. Will you please define for this jury what is meant by 'consisted in his failure to observe a proper lookout for cars approaching from the west?' This jury would appreciate your definition of the word 'lookout' as pertaining to automobile driving. W. B. Griffin, Foreman of Jury." That without notice to the parties or counsel and not in the presence of the parties or their counsel the court sent the following reply to this communication: "Gentlemen. In answer to the above inquiry you are advised that 'Proper Lookout' means to look out for or observe approaching cars, providing a person ordinarily prudent would have looked for or observed approaching cars under the circumstances surrounding this accident. 2:50 p. m. Attach to instructions. James E. Rait, Judge."

The verdict of the jury was returned at 4 o'clock p. m. Counsel for plaintiff argues that it is evident, from the communication of the jury to the court and the request for the definition of the term "Proper Lookout," that the jury were committed to the plaintiff's theory as to the manner in which the accident occurred, and that the instruction given by the court, without notice and not in the presence of parties or their counsel, was prejudicial error.

We shall consider the assignments of error in their order. In an action for damages by reason of alleged negligence of another evidence of the financial standing of the parties is clearly inadmissible. If a party has sustained damages by reason of the negligence of another, he is entitled to a verdict for the amount of the damages which he is able to prove, and no more, and he is entitled to such a verdict regardless of the ability of the defendant to pay. As was said in Laidlaw v. Sage, 158 N.Y. 73, 52 N.E. 679, where similar evidence had been admitted: "It has ever been the theory of our government and a cardinal principle of our jurisprudence that the rich and poor stand alike in courts of justice, and neither the...