Welstead v. Jim Ryan Const. Co.

• Decision Date: 11 March 1955
• Docket Number: No. 33641,33641
• Citation: 160 Neb. 87,69 N.W.2d 308
• Parties: Lola WELSTEAD, Appellant, v. JIM RYAN CONSTRUCTION CO., a corporation, and James G. Ryan, Appellees.
• Court: Nebraska Supreme Court

Page 308

69 N.W.2d 308

160 Neb. 87

Lola WELSTEAD, Appellant, v. JIM RYAN CONSTRUCTION CO., a corporation, and James G. Ryan, Appellees.

No. 33641.

Supreme Court of Nebraska.

March 11, 1955.

Syllabus by the Court.

1. When evidence with relation to negligence is conflicting or such that minds may reasonably reach different conclusions therefrom with regard to its existence, the issue should be submitted to the jury for its determination.

2. In determining the sufficiency of evidence to sustain a verdict it must be considered most favorably to the successful party, any controverted fact resolved in his favor, and he must have the benefit of inferences reasonably deducible from it.

3. The verdict of a jury, based on conflicting evidence, will not be disturbed unless clearly wrong.

4. Errors assigned but not discussed will not ordinarily be considered by this court.

5. Damages for permanent injuries cannot be based upon mere speculation, probability, or uncertainty, but must be based upon competent evidence that permanent damages, clearly shown, are reasonably certain as a proximate result of the injury.

6. Life tables of expectancy may be properly received in evidence only when there is competent evidence that the claimed injuries are permanent.

7. The trial court has the duty to instruct the jury on issues presented by the pleadings and evidence, whether requested to do so or not, and a failure so to do constitutes prejudicial error.

8. It is error to submit issues upon which there is no evidence to sustain an affirmative finding.

9. Where it is claimed that the conduct of others not parties to the suit was the sole proximate cause of an accident, such defense is not an affirmative plea in avoidance of plaintiff's cause of action, and imposes no burden of proof upon defendant with relation thereto, but is one entirely consistent with and provable under the general issue. However, some place in the instructions the jury should be advised that if it should find the sole proximate cause of the accident in which plaintiff was injured was the negligence of others, then its verdict should be for defendant.

10. When separate and independent acts of negligence by different persons combine to produce a single injury, each participant is liable for the resulting damages, though one of them alone would not have caused the result.

Webb, Kelley, Green & Byam, Omaha, for appellant.

Fraser, Connolly, Crofoot & Wenstrand, Omaha, for appellees.

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

CHAPPELL, Justice.

Plaintiff Lola Welstead brought this action against defendants Jim Ryan Construction Co., a corporation, and James G. Ryan, seeking to recover damages for personal injuries allegedly caused by a collision of motor vehicles which occurred at about 9:15 a. m. on August 10, 1951, near the intersection of Forty-ninth and Dodge Streets in Omaha. Upon trial to a jury, it returned a verdict for defendants, and judgment was rendered thereon. Plaintiff's motion for new trial was overruled and she appealed, assigning in substance that: (1) The verdict and judgment were not sustained by the evidence; (2) the trial court erred in the admission and exclusion of certain evidence; and (3) the trial court erred in the giving and failing to give appropriate required instructions. We sustain the last assignment.

The following is admitted by the pleadings and evidence, to wit: At time of accident plaintiff was a guest passenger riding in the front seat of a 1946 Ford two-door sedan owned and driven by her husband. It will be designated as the Welstead car. Also at time of accident defendant James G. Ryan owned a 1950 GMC three-quarter-ton truck driven with his consent by an employee of defendant Jim Ryan Construction Co., also owned and operated by defendant James G. Ryan. Such company will be designated as defendant corporation. Defendant James G. Ryan will be designated as defendant Ryan, and his truck will be designated as defendants' truck. Dodge Street is a four-lane street extending east and west to and from Omaha. It is intersected by Forty-ninth Street. Plaintiff's driver approached the intersection from the west while driving about 20 miles an hour in the outside or south lane of Dodge Street. The red traffic signal light at Forty-ninth Street appeared and he stopped his car about half a car length behind the last of several others waiting for the signal to change. His brakes were on and his car was in low gear with the clutch depressed.

Also there is evidence in the record from which it could be reasonably concluded as follows: That a 1948 Chevrolet car hereinafter called the Kemmy car, driven by a Mrs. J. F. Kemmy, had previously followed the Welstead car 15 or 20 feet to the rear thereof, and stopped from 3 to 5 feet behind it. At that time the only eastbound traffic was all in the south or outside lane, and the rest of the street, including a passing lane on the left and also a parking lane on the right, was clear for eastbound traffic. Nevertheless, while the Welstead car and the Kemmy car were stopped as aforesaid, the Ryan truck, while operated in high gear, crashed into the rear of the Kemmy car, knocking it forward with force and violence into the rear of the Welstead car, which caused plaintiff's injuries.

On the other hand, there is evidence from which it could be reasonably concluded as follows: That plaintiff's driver stopped his car suddenly behind several cars ahead of it, without making any hand and arm signal that he intended to do so. Also that defendant's employee was driving defendant's truck about 15 miles an hour one-half car length behind the Kemmy car, when it stopped quickly or suddenly right in front of him, and his front bumper collided lightly with the rear bumper of the Kemmy car after there had been a collision between the Kemmy car and the Welstead car.

Evidence with regard to damages sustained by the respective vehicles was substantially as follows: That the transmission gears and the trunk lid, bumper, bumper brackets, and gravel guards on the rear of the Welstead car were damaged. That the windshield of the Kemmy car was shattered on the right side where Mrs. Kemmy's little boy struck it with his head. Also, the center grille and 'T' bar on the grille, at the front of the Kemmy car, were damaged and had to be replaced. The grille had been punctured by a trailer hitch on the rear of the Welstead car. The damage to the rear of the Kemmy car was a dent in the taller center bumper guard, which after the accident was left askew. The damage to the front of defendants' truck was a dent in its bumper. However, such damage was claimed by defendants to have been caused by a prior accident.

It is elementary that when evidence with relation to negligence is conflicting or such that minds may reasonably reach different conclusions therefrom with regard to its existence, the issue should be submitted to the jury for its determination. Further, as held in Bolio v. Scholting, 152 Neb. 588, 41 N.W.2d 913, 914: 'In determining the sufficiency of evidence to sustain a verdict it must be considered most favorably to the successful party, any controverted fact resolved in his favor, and he must have the benefit of inferences reasonably deducible from it.

'The verdict of a jury, based on conflicting evidence, will not be disturbed unless clearly wrong.'

In the light of such rules and the evidence heretofore set forth, we conclude that the issues of negligence were questions for the jury and that the verdict of the jury was supported by competent evidence. Therefore, the first assignment has no merit.

Plaintiff contended that the trial court erred prejudicially in excluding most of her medical testimony that plaintiff's injuries were caused by the accident. In that regard, plaintiff's physician testified that she had a lumbosacral sprain. When asked whether in his opinion such disability was the result of the accident involved, plaintiff's physician answered: 'I most certainly think so.' Thus, if any error were theretofore committed, it was cured by the answer thus given. Plaintiff's contention has no merit.

One of plaintiff's contentions specifically assigned that the court erred in permitting defendants' employee to speculate that there was a collision between the Welstead car and the Kemmy car before his truck collided with it. That alleged error was not argued in plaintiff's brief and will not be further considered here because this court has consistently held that: 'Errors assigned but not discussed will not ordinarily be considered by this court.' Umberger v. Sankey, 151 Neb. 488, 38 N.W.2d 21, 22.

Plaintiff argued that the court erred in excluding evidence that her injuries were permanent, and erred in excluding the life tables of expectancy offered by her. However, instruction No. 1, which summarized the allegations of plaintiff's petition, did recite her age and alleged expectancy. Further, when plaintiff's physician was asked whether plaintiff would require further medical attention, he answered in part: 'Medically, as far as we are concerned the duration is too indefinite to know. I don't think any doctor would put a time limit on these things. It is one of those things that is hard to prognose, because they are such aggravating things.' He was then asked whether plaintiff's injuries and disability were permanent, whereupon objection thereto was sustained upon the ground that it had already been asked and answered. We conclude that such ruling was correct, because the applicable and controlling rule is that: 'Damages for permanent injuries cannot be based upon mere speculation, probability, or uncertainty, but must be based upon competent evidence that permanent damages, clearly shown, are reasonably certain as a proximate result of the injury.' Borcherding v. Eklund, 156 Neb. 196, 55 N.W.2d 643, 645. See, also, Schwarting v....