Trussell v. Ferguson

• Citation: 239 N.W. 461,122 Neb. 82
• Decision Date: 11 December 1931
• Docket Number: 28014
• Parties: MOSES B. TRUSSELL, APPELLEE, v. HARRY FERGUSON, APPELLANT
• Court: Supreme Court of Nebraska

239 N.W. 461

122 Neb. 82

MOSES B. TRUSSELL, APPELLEE, v. HARRY FERGUSON, APPELLANT

No. 28014

Supreme Court of Nebraska

December 11, 1931

APPEAL from the district court for Holt county: ROBERT R. DICKSON JUDGE. Reversed.

REVERSED.

Syllabus by the Court.

Refusal of requested instruction does not constitute error, where instruction given by the court on its own motion is to the same effect.

A party who induces the trial court to give an erroneous instruction, by requesting one to the same effect, cannot predicate error thereon.

Rules and regulations made and issued by the department of public works under the authority and in accord with section 39-1416, Comp. St. 1929, are admissible where applicable to the evidence.

Appeal from District Court, Holt County; Dickson, Judge.

Action by Moses B. Trussell against Harry Ferguson. Judgment for the plaintiff, and the defendant appeals.

Reversed and cause remanded.

Good, Good & Kirkpatrick, Julius D. Cronin and Ralph M. Kryger, for appellant.

J. A. Donohoe and J. J. Harrington, contra.

Heard before GOSS, C. J., DEAN and EBERLY, JJ., and CHASE and HASTINGS, District Judges.

OPINION

GOSS, C. J.

Plaintiff obtained a verdict and judgment for damages against defendant for personal injuries. Both parties were driving west on highway number 20 and about a mile and a quarter west of Royal in Antelope county. Plaintiff was driving a team hitched to a wagon. Back of the seat was a disk. Hitched to the wagon on the rear he had a tandem tow of two mowers he had purchased at a sale. It was about sundown. There is a conflict in the evidence as to whether it was dark enough to require lights on cars. Plaintiff had no lights on his wagon or on the mowing machines behind it. Defendant, driving an automobile west, struck the rear mower. The effect was to throw plaintiff back from his seat against the disk and to injure him. Defendant testified he was driving about 30 miles an hour; the bright lights of an east-bound car blinded him so that he slowed down a little to get his bearings; "so I was looking at the side of the road and the center of the road, and I looked up ahead of me and suddenly there right in front of me was an object, I didn't know what it was, and I whirled to the left to avoid it, but I didn't avoid it, I was too close to it and I hit it on one wheel" (parenthetically, it should be said that defendant, on cross-examination, admitted that the car with bright lights had passed him a quarter of a mile before he struck plaintiff's rig and that he was watching another car which did not arrive until after the accident); what he first saw ahead of him, he testified, looked like a team and wagon--if it had been the team and wagon alone he would have missed it; he found out afterwards it was the rear mower he struck; and he estimated he was going between 25 and 30 miles an hour. His car was overturned and damaged.

An assignment of error is based on instruction number 10, which is as follows: "In determining whether or not the defendant was guilty of negligence in driving his car, you may consider the fact that he had liability insurance, together with all the other facts and circumstances appearing in evidence. The fact that the defendant carried liability insurance of itself is not proof of negligence on the part of the defendant."

Carrying liability insurance is generally considered prudent and farsighted. Some states have made it a part of their legislative and public policy to require it. We find ourselves unable to agree that it is a matter to be considered with other facts and circumstances to determine whether or not one driving a car is guilty of negligence. If the transcript showed that the court gave this instruction on its own motion alone and that the defendant did not induce him to give it, we would say that the first sentence, at least, was clearly erroneous.

But the defendant induced the court to give the instruction by his own instruction number 5, requested by him and refused. Defendant also assigns this refusal as error. That requested instruction reads: "You are further instructed that the fact that the defendant carried liability insurance of itself is not proof of negligence on the part of the defendant, and the mere fact that the defendant carries insurance alone should not be considered by yourself in arriving at your findings."

In this requested instruction, by the use of the words "of itself" in the first clause and by the use of the words "the mere fact * * * alone" in the second clause the defendant, by implication, wished the jury to be instructed and to understand that the matter of insurance might be considered in connection with other facts and circumstances bearing on negligence. The trial court accepted defendant's view of the law on this subject and merely amplified it in the first sentence of its instruction number 10 by telling the jury that the insurance (which defendant requested the court to say could not be considered "alone") could be considered with all the other facts and circumstances appearing in evidence. Where instructions given by a court have the same effect as those refused, error does not result from the refusal. Sonneman v. Atkinson, 121 Neb. 752, 238 N.W. 532; Payne v. Clark, 117 Neb. 238, 220...