Weisenmiller v. Nestor

• Decision Date: 24 July 1950
• Docket Number: No. 32741,32741
• Parties: WEISENMILLER v. NESTOR.
• Court: Nebraska Supreme Court

Page 568

43 N.W.2d 568

153 Neb. 153

WEISENMILLER v. NESTOR.

No. 32741.

Supreme Court of Nebraska.

July 24, 1950.

Syllabus by the Court.

1. A motion to dismiss or for directed verdict admits the truth of all material and relevant evidence adduced by the party against whom the motion is made, and such party is entitled to have such evidence considered in the light most favorable to him and to have the benefit of all inferences reasonably deducible therefrom in testing validity of the court's action in disposing of the motion.

2. In those cases where reasonable minds may differ on the question of whether or not the operator of an automobile exercised the ordinary care required of him under the circumstances of the particular situation, the issue of negligence on the part of the operator is one of fact to be determined by a jury.

3. A plaintiff is required to establish by a preponderance of the evidence that the injury occurred in the manner alleged, but when facts and circumstances are adduced from which the manner of sustaining injuries and damages may be logically inferred, an issue thereon is for the jury to determine.

4. Where under the evidence adduced it appears that negligence of defendant alleged to have proximately caused injuries and damages to plaintiff was not joint or concurrent with others in such manner as to impose liability upon defendant as a joint tort-feasor, then he is liable for only such injuries and damages as a preponderance of the evidence establishes that plaintiff sustained as the proximate result of defendant's negligence as distinguished from those, if any, caused by others.

Max Kier, Lincoln, Charles Bocken, Lincoln, for appellant.

Towle, Young & Mattson, Lincoln, for appellee.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.

CHAPPELL, Justice.

Plaintiff brought this action to recover damages for personal injuries alleged to have been proximately caused when he was run over on a highway at night by an automobile owned and negligently operated by defendant. After plaintiff had rested, defendant moved for a directed verdict for insufficiency of the evidence. At that time the motion was overruled, but upon renewal thereof at conclusion of all the evidence the trial court sustained such motion and instructed the jury accordingly, whereupon it returned a verdict for defendant and a judgment was entered in conformity therewith. Plaintiff's motion for new trial was subsequently overruled and he appealed, assigning substantially that the trial court erred: (1) In sustaining defendant's motion for directed verdict; (2) in failing to submit the cause to the jury for its determination; and (3) in overruling plaintiff's motion for new trial. We sustain the assignments.

Plaintiff argued that there was sufficient competent evidence adduced by him from which it could have been reasonably concluded that defendant was negligent in one or more of the particulars alleged, which proximately caused personal injuries and damages to plaintiff. We sustain that contention.

In that connection, plaintiff's petition alleged substantially that defendant negligently drove his car at an excessive rate of speed without proper regard for the condition of the highways and the traffic thereon; without having his car under proper control; without maintaining a proper lookout to observe plaintiff's position on the highway or taking precautions to avoid running over him; and drove his car at such a rate of speed as to be unable to stop within the range of his vision.

Plaintiff also pleaded the last clear chance. However, as stated in Parsons v. Berry, 130 Neb. 264, 264 N.W. 742: 'The doctrine of last clear chance applies in those cases where there is negligence of the defendant subsequent to the negligence of the plaintiff and the defendant's negligence is the proximate cause of the injury.' In the record before us, we find no competent evidence from which it could be reasonably concluded that plaintiff was placed in a position of peril by his own negligence. Therefore the only question presented is whether or not defendant was negligent in some manner alleged which proximately caused the accident and resulting injuries and damages to plaintiff. True, plaintiff was in a position of peril, but how he got there is not shown. We conclude that under the circumstances presented, the last clear chance doctrine had no application.

At the outset it should be observed that a motion to dismiss or for directed verdict admits the truth of all material and relevant evidence adduced by the party against whom the motion is made, and such party is entitled to have such evidence considered in the light most favorable to him and to have the benefit of all inferences reasonably deducible therefrom in testing validity of the court's action in disposing of the motion. Moncrief v. Interstate Transit Lines, 129 Neb. 168, 261 N.W. 163; Shiman Bros. & Co. v. Nebraska Nat. Hotel Co., 143 Neb. 404, 9 N.W.2d 807; Armer v. Omaha and C. B. St. Ry. Co., 151 Neb. 431, 37 N.W.2d 607; Pahl v. Sprague, 152 Neb. 681, 42 N.W.2d 367. In the light thereof and other applicable rules hereinafter discussed, we have examined the record.

Competent and relevant evidence adduced by plaintiff was substantially as follows:

During the evening of May 26, 1948, plaintiff, with his mother and brother, went for a ride in the brother's car. They drove from Lincoln south to Princeton, and about 11 p. m. started back to Lincoln over U. S. Highway No. 77. A short distance south of the Turnpike, they had a flat tire. The filling station nearby was closed, and farm houses were dark. Having no tools with which to make repair, the brother and mother, by pre-arrangement, started walking south and plaintiff started walking north to obtain assistance. The brother and mother did obtain assistance and thereafter drove on into Lincoln without seeing or hearing of plaintiff again until early the next morning when they were informed that he was in a hospital.

In the meantime, plaintiff had walked north on the east side of the highway. He was wearing new shoes which hurt his feet, so he removed his shoes and sox and placed the sox in his shoes which he tied together and carried in his hands or about his neck. He tried unsuccessfully to thumb a ride from passing motorists as he walked north on the pavement in his bare feet.

He did not recall being struck by anything, but the next thing he did remember was that he was in quite a deep ditch on the east side of the highway. There was then something wrong with his right foot or leg, because he could not walk on it. However his arms were all right, and using his hands and arms he crawled out of the ditch up to the edge of the road, where everything blacked out and he remembered nothing again until he was in a car being taken to a hospital.

Theretofore at about 2 a. m. a car occupied by the driver, his wife, their two children and two other adults came from the south traveling on the east side of U. S. Highway No. 77 at 40 to 50 miles an hour. At a point opposite Lincoln Memorial Cemetery the driver saw something like a body prone in the west lane of the highway. His wife also saw the object which looked like a bundle of clothes. They drove on north for a couple of blocks then turned around and drove back to investigate. They drove slowly past and there saw that it was the body of a man dressed in dark clothes lying head to the south, feet stretched out together, and arms folded with a shoe on his chest. They...