Winterson v. Pantel Realty Company

• Decision Date: 18 November 1938
• Docket Number: 30362
• Citation: 282 N.W. 393,135 Neb. 472
• Parties: RICKA WINTERSON, APPELLANT, v. PANTEL REALTY COMPANY, APPELLEE
• Court: Nebraska Supreme Court

282 N.W. 393

135 Neb. 472

RICKA WINTERSON, APPELLANT, v. PANTEL REALTY COMPANY, APPELLEE

No. 30362

Supreme Court of Nebraska

November 18, 1938

APPEAL from the district court for Douglas county: CHARLES LESLIE JUDGE. Reversed.

REVERSED.

Syllabus by the Court.

1. A judgment notwithstanding the verdict can only be rendered when the pleadings of the party in whose favor the verdict was rendered confess facts entitling the other party to judgment.

2. If the trial court is of the opinion that it erred in submitting the case to a jury and should have directed a verdict for the defendant because of the insufficiency of plaintiff's evidence to make a case, the proper remedy is to grant a new trial.

3. Ordinances requiring protective measures to be taken in constructing apartment houses, and other like ordinances impose a mandatory and affirmative duty upon the owners of such property, and a failure to perform such a duty so enjoined is negligence per se, and if any person to whom the duty is owed, or for whose protection the ordinance is enacted, is injured in consequence of such violation, a case is made.

4. The burden of proof is upon the plaintiff in a personal injury action to establish that some one of the acts of negligence charged in the petition was the proximate cause of the injury of which complaint is made.

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

Action by Ricka Winterson against the Pantel Realty Company for personal injuries sustained in a fall on a stairway in defendant's apartment house. From a judgment for defendant notwithstanding a verdict for plaintiff, the plaintiff appeals.

Judgment reversed with instructions to grant a new trial.

Brome & Thomas and Robert Smith, for appellant.

Kennedy, Holland, De Lacy & Svoboda, contra.

Heard before ROSE, C. J., EBERLY, PAINE, CARTER and MESSMORE, JJ.

OPINION

CARTER, J.

This is an action for damages for personal injuries against the owner of an apartment house. Plaintiff alleged that she suffered injuries by falling on a stairway that was negligently constructed and maintained by the owner of the building. At the close of plaintiff's case, the defendant moved for a dismissal on the ground that the evidence was insufficient to constitute a cause of action, which motion was overruled by the trial court. The motion to dismiss was renewed at the close of all the evidence and it also was overruled. The case was submitted to the jury and a verdict of $ 2,000 was returned for the plaintiff. Defendant then moved for a judgment notwithstanding the verdict and for an order sustaining defendant's motion for a dismissal. Defendant also filed a motion for a new trial. The trial court sustained defendant's motion for judgment notwithstanding the verdict, entered an order sustaining the motion to dismiss, and overruled defendant's motion for a new trial.

We are of the opinion that the trial court erred in sustaining the motion for a judgment notwithstanding the verdict. Under our practice a judgment notwithstanding the verdict may be had only when the pleadings confess facts entitling the moving party to a judgment. Our statute on the subject provides: "Where, upon the statements in the pleadings, one party is entitled by law to judgment in his favor, judgment shall be so rendered by the court, though a verdict has been found against such party." Comp. St. 1929, sec. 20-1315.

In Manning v. City of Orleans, 42 Neb. 712, 60 N.W. 953, we said: "Section 440 of the Code of Civil Procedure (Comp. St. 1929, sec. 20-1315) provides a remedy substantially like the motion for judgment non obstante veredicto of the common law. Such a judgment can only be rendered when the pleadings of the party in whose favor the verdict was rendered confess facts entitling the other party to judgment." See, also, Kenesaw Mill & Elevator Co. v. Aufdenkamp, 106 Neb. 246, 183 N.W. 294; Hamaker v. Patrick, 123 Neb. 809, 244 N.W. 420. The pleadings do not entitle the defendant to a judgment and it is not so contended. It is clear, therefore, that a judgment notwithstanding the verdict cannot be granted because the evidence is deemed insufficient to sustain the verdict. The remedy in such case is governed by the following authorities:

"In a case in which a party is entitled to a jury trial, and where the pleadings do not confess the right to a judgment, the court cannot disregard the verdict and enter such judgment as the evidence warrants. If the verdict is not sustained by the evidence, the remedy is by motion for a new trial on that ground." Manning v. City of Orleans, 42 Neb. 712, 60 N.W. 953.

"If the trial court is of opinion that, in view of plaintiff's evidence, it erred in submitting the case to the jury and should have directed a verdict for the defendant, the proper course is to grant a new trial." Barge v. Haslam, 65 Neb. 656, 91 N.W. 528.

"As applicable and mandatory at the stage of the proceedings set forth in the instant record, without reference to the bill of exceptions, this court has long announced, as the doctrine controlling, that, 'If the trial court is of the opinion that, in view of plaintiff's evidence, it erred in submitting the case to the jury and should have directed a verdict for the defendant, the proper course is to grant a new trial.' Barge v. Haslam, 65 Neb. 656, 91 N.W. 528.

"So, too, in reviewing a record involving the limitation under consideration, we have said: 'In a case in which a party is entitled to a jury trial, and where the pleadings do not confess the right to a judgment, the court cannot disregard the verdict and enter such judgment as the evidence warrants. If the verdict is not sustained by the evidence, the remedy is by motion for a new trial on that ground.' Manning v. City of Orleans, 42 Neb. 712, 60 N.W. 953." Hamaker v. Patrick, 123 Neb. 809, 244 N.W. 420.

We necessarily come to the conclusion that there is nothing in the pleadings that warrants the granting of a judgment notwithstanding the verdict. Likewise, the authorities hold that, if it appears to the trial court that plaintiff's evidence was insufficient to warrant the submission of the case to the jury and that a verdict should have been directed for the defendant, the proper course is to grant a new trial. The trial court was therefore in error in dismissing plaintiff's case.

Defendant cites the following cases in support of a contrary view Netusil v. Novak, 120 Neb. 751, 235 N.W. 335; Bielfeldt v. Grand Island Transit Co., 123 Neb. 368, 243 N.W. 76; LeBarron v. City of Harvard, 129 Neb. 460, 262 N.W. 26; First Nat. Bank v. Broyles, 122 Neb. 414, 240 N.W. 546; Pinches v. Village of Dickens, 127 Neb. 239, 254 N.W. 877. The first three cases are clearly distinguishable. The rule announced by them in effect is: When a verdict has been returned by a jury that is in all respects free from prejudicial error, and the court thereafter wrongfully sets it aside, this court may correct the error by reversing the trial court's wrongful order and reinstating the original verdict and judgment based thereon. This procedure presupposes a valid verdict and judgment, free from prejudicial error. Such was not the situation in the case at bar. In Pinches v. Village of Dickens, supra, the disposition in this court was in accordance with the foregoing rule. The statement in the opinion, however, that the procedure followed in the district court in that case was in accordance with that suggested in Netusil v. Novak, supra, is not correct under the facts recited in that opinion. Clearly under the authorities herein cited, the trial court in that case was without authority to set aside a verdict and judgment and sustain def...