Traphagan v. Mid-America Traffic Marking

• Decision Date: 22 November 1996
• Docket Number: No. S-94-1032,MID-AMERICA,S-94-1032
• Citation: 251 Neb. 143,555 N.W.2d 778
• Parties: Gerald H. TRAPHAGAN, Personal Representative of the Estate of Kathy Jo Traphagan, deceased, Appellee and Cross-Appellant, v.TRAFFIC MARKING, an Iowa corporation, Appellant and Cross-Appellee.
• Court: Nebraska Supreme Court

Page 778

555 N.W.2d 778

251 Neb. 143

Gerald H. TRAPHAGAN, Personal Representative of the Estate of Kathy Jo Traphagan, deceased, Appellee and Cross-Appellant, v. MID-AMERICA TRAFFIC MARKING, an Iowa corporation, Appellant and Cross-Appellee.

No. S-94-1032.

Supreme Court of Nebraska.

Nov. 22, 1996.

Syllabus by the Court

1. Judgments: Appeal and Error. Regarding a question of law, an appellate court has an obligation to reach a conclusion independent of that of the trial court in a judgment under review.

2. 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.

3. Motor Vehicles: Negligence. A motorist is deemed negligent as a matter of law if he or she operates a motor vehicle in such a manner as to be unable to stop or turn aside without colliding with an object or obstruction in the motorist's path within his or her range of vision.

4. Trial: Negligence: Evidence. Where reasonable minds may draw different conclusions and inferences regarding the negligence of the plaintiff and the negligence of the defendant such that the plaintiff's negligence could be found to be less than 50 percent of the total negligence of all persons against whom recovery is sought, the apportionment of fault must be submitted to the jury. Only where the evidence and the reasonable inferences therefrom are such that a reasonable person could reach only one conclusion, that the plaintiff's negligence equaled or exceeded the defendant's, does the apportionment of negligence become a question of law for the court.

5. Directed Verdict: Appeal and Error. In reviewing a trial court's ruling on a motion for directed verdict, an appellate court must treat a motion for directed verdict as an admission of the truth of all competent evidence submitted on behalf of the party against whom the motion is directed; such being the case, the party against whom the motion is directed is entitled to have every controverted fact resolved in its favor and to have the benefit of every inference which can reasonably be deduced from the evidence.

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

7. 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.

8. Jury Instructions. An instruction on a matter not an issue in the litigation distracts the jury from its effort to answer legitimate, factual questions raised during the trial.

9. 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.

10. Negligence. For purposes of a physical disability, the generally accepted standard of care is, as for any other person, ordinary care under the circumstances. However, a person's disability is one of the circumstances to be considered in determining whether such person exercised ordinary care.

11. Negligence. One who is ill must conform to the standard of a reasonably careful person under a like disability.

Leland K. Kovarik, of Holtorf, Kovarik, Ellison & Mathis, P.C., Gering, for appellant.

Patrick M. Connealy, Chadron and Laurice M. Margheim, Alliance, for appellee.

WHITE, C.J., and CAPORALE, FAHRNBRUCH, LANPHIER, WRIGHT, CONNOLLY, and GERRARD, JJ.

WRIGHT, Justice.

Kathy Jo Traphagan was killed when the car she was driving struck the rear of a Mid-America Traffic Marking (Mid-America) truck. The personal representative of Traphagan's estate sued Mid-America. The trial court overruled Mid-America's motion for directed verdict; however, the court held that Traphagan was contributorily negligent as a matter of law in violating Nebraska's "range of vision" rule. The court submitted the issue of Mid-America's negligence to the jury. The jury found that the accident was caused 75 percent by Mid-America's negligence and 25 percent by Traphagan's negligence, and the court entered a judgment against Mid-America in the amount of $750,000. Mid-America appealed, and the personal representative filed a cross-appeal. We affirm the judgment of $750,000 and dismiss the cross-appeal.

SCOPE OF REVIEW

Regarding a question of law, an appellate court has an obligation to reach a conclusion independent of that of the trial court in a judgment under review. New Light Co. v. Wells Fargo Alarm Servs., 247 Neb. 57, 525 N.W.2d 25 (1994); Jasa v. Douglas County, 244 Neb. 944, 510 N.W.2d 281 (1994).

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. Reavis v. Slominski, 250 Neb. 711, 551 N.W.2d 528 (1996); German v. Swanson, 250 Neb. 690, 553 N.W.2d 724 (1996).

FACTS

Western Engineering was the primary contractor with the State of Nebraska under a contract to lay new asphalt on U.S. Highway 20. Mid-America had been contracted by Western Engineering to apply and maintain temporary pavement markings during the construction process. On September 21, 1992, at approximately 5 p.m., Traphagan was traveling east in a Pontiac on Highway 20 when she collided with the right rear of a 1-ton truck owned and operated by Mid-America.

At the time of the collision, the Mid-America truck was stopped in the middle of the eastbound lane of Highway 20, which was newly resurfaced. Members of the crew were in the process of removing centerline tape which consisted of a series of 2-foot long strips. As the truck stopped, the crew used a torch attached to the truck to heat a strip and then scrape it off. Once one strip was removed, the Mid-America truck would move 4 feet to the next strip.

Prior to the accident, Traphagan was driving east on Highway 20 at approximately 55 m.p.h. The collision occurred approximately 430 feet from the crest of a hill. An orange sign stating "Road Construction Next 11 Miles" was located 7* miles from the scene of the accident, but there were no other advance warning signs, orange cones, or flaggers warning that a stopped vehicle was blocking the lane ahead. Testimony adduced at trial indicated that Mid-America's employees were not wearing the orange vests required for road work. There was conflicting evidence as to whether the hazard lights on the Mid-America truck were flashing. The Mid-America truck was equipped with a flashing amber beacon on the top of its cab, and the evidence indicates that the beacon was on at the time of the accident. There were no other flags or signs that highlighted the truck's presence.

Traphagan's Pontiac struck the right rear corner of the truck in such a manner that the left corner pillar of the Pontiac was severed and the top was torn off the car. Traphagan died as a result of this collision.

Traphagan's personal representative brought this action against Mid-America alleging, inter alia, that Mid-America was negligent in failing to properly warn of its presence blocking the eastbound lane, failing to properly train its employees in principles of safe traffic control, and failing to heed the express verbal warnings of other motorists regarding the danger that the Mid-America truck presented. The trial court directed a verdict that Traphagan was contributorily negligent as a matter of law, but allowed the jury to determine the percentage of Traphagan's negligence as compared to Mid-America's. The jury awarded damages of $1,000,000 and assigned 25 percent of the negligence to Traphagan and 75 percent to Mid-America. As a result, the court entered a judgment of $750,000 in favor of Traphagan.

ASSIGNMENTS OF ERROR

Mid-America assigns five errors: The trial court erred (1) in failing to apply Nebraska's range of vision rule and in submitting the issue of Traphagan's negligence to the jury, (2) in failing to give Mid-America's requested instruction No. 7, (3) in giving instruction No. 10 and in failing to give Mid-America's requested instruction No. 3, (4) in giving instruction No. 13, and (5) in giving instruction No. 14.

The personal representative has cross-appealed, asserting that the trial court erred in submitting the issue of Traphagan's negligence to the jury and erred in finding Traphagan contributorily negligent.

ANALYSIS

Mid-America argues that a directed verdict should have been granted against Traphagan because she was negligent as a matter of law in operating her vehicle at such a speed that she could not stop within her range of vision and that Traphagan did not make a prima facie case with respect to Mid-America's negligence. The range of vision rule states that "a motorist is deemed negligent as a matter of law if he or she operates a motor vehicle in such a manner as to be unable to stop or turn aside without colliding with an object or obstruction in the motorist's path within his or her range of vision." Nickell v. Russell, 247 Neb. 112, 120-21, 525 N.W.2d 203, 208 (1995). Accord Horst v. Johnson, 237 Neb. 155, 465 N.W.2d 461 (1991).

Mid-America contends...