Wolcott v. Drake

• Decision Date: 24 February 1956
• Docket Number: No. 33853,33853
• Citation: 75 N.W.2d 107,162 Neb. 56
• Parties: Frances WOLCOTT, Administratrix of the Estate of Phineas Asa Wolcott, Deceased, Appellant, v. Royal DRAKE, Appellee.
• Court: Nebraska Supreme Court

Page 107

75 N.W.2d 107

162 Neb. 56

Frances WOLCOTT, Administratrix of the Estate of Phineas Asa Wolcott, Deceased, Appellant, v. Royal DRAKE, Appellee.

No. 33853.

Supreme Court of Nebraska.

Feb. 24, 1956.

Syllabus by the Court.

1. The burden of proving negligence is on the party alleging it.

2. If defendant pleads that the plaintiff was guilty of contributory negligence, the burden is upon him to prove that defense and this burden does not shift during the trial. However, if the evidence adduced by the plaintiff tends to prove that issue, the defendant is entitled to receive the benefit thereof.

3. The negligence of a person charged with responsibility for an accident cannot be inferred from a presumption of due care on the part of a person killed in an accident. A presumption of due care in the performance of duty attends a person so charged as well as a person so killed.

4. Negligence is not presumed; the mere happening of an accident does not prove negligence.

5. The burden of proving a cause of action is not sustained by evidence from which negligence can only be surmised or conjectured.

6. It is essential to the existence of negligence that there be some fault on the part of the person sought to be held liable.

7. Negligence is the doing of something which an ordinarily prudent person would not have done under the same or similar circumstances, or the failure to do something which an ordinarily prudent person would have done under the same or similar circumstances.

Torgeson, Halcomb & O'Brien, John D. Knapp, Kimball, for appellant.

Van Steenberg & Myers, Kimball, for appellee.

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

SIMMONS, Chief Justice.

This is an action for damages based on negligence arising from an automobile collision causing the death of Phineas Asa Wolcott. Plaintiff seeks recovery for the exclusive benefit of the widow and next of kin. The collision involved an automobile driven by the deceased and one driven by the defendant. Issues were made and trial was had. At the close of all the evidence the trial court sustained a motion to dismiss, based on the insufficiency of plaintiff's evidence. Plaintiff appeals.

We affirm the judgment of the trial court.

Plaintiff alleged her version of the accident and pleaded that it was caused by defendant's negligence in many particulars. Defendant pleaded his version of the accident, denied negligence, and pleaded contributory negligence in many particulars.

We state the evidence as it relates to the question of defendant's negligence.

U. S. Highway No. 30 is a main-traveled paved two- lane highway leading west from Kimball, Nebraska. Shortly before 8 o'clock on the morning of July 12, 1952, deceased was driving west along that highway. Defendant was driving east along that highway. About 2 miles west of Kimball there is a graveled road leading south from U. S. Highway No. 30. The collision occurred at that intersection. Plaintiff offered evidence as to the location of the graveled road.

Plaintiff's evidence does not show the actual collision of the cars. It consisted of the evidence of a deputy sheriff, supported by photographs, that immediately after the accident, the two cars were on the east side of the graveled road and south of the paved portion of U. S. Highway No. 30. It showed that defendant's car was damaged as though by a direct head-on collision with some object, with the left front headlight broken and the right front headlight not broken. It showed skid marks leading from the west. These marks were 54 feet in length to a point where they 'changed directions,' and then skid marks from that point to the two cars. The skid marks angled off the 'oil' approximately 20 feet to the point where there was a change of direction. The distance of that point from the pavement is not shown. The evidence showed that there was clear visibility along the highway for three-tenths of a mile west of the point of the accident.

Plaintiff's evidence shows also that the deceased was seriously injured in the accident and died thereafter on July 22, 1952.

Plaintiff then rested her case-in-chief.

Defendant moved for a directed verdict which was overruled. Defendant then took the stand to testify in his own behalf.

He testified to events prior to the accident and that he was involved in an accident on July 12, 1952, 2 miles west of Kimball 'on a driveway leading to the south.' He then undertook to further testify as to the accident. Objections to his competency were made apparently under the provisions of section 25-1202, R.R.S.1943, the so-called 'dead man statute.' The trial court sustained objections to the testimony and an offer of proof. Defendant having prevailed, that ruling is not here for review.

Defendant then called a witness who was riding with him. He testified that defendant's speed was 45 to 50 miles per hour prior to the accident; that defendant was driving on the right-hand side of the highway going east; that prior to the accident there were several cars visible to the east and going west; that they were passing each other by going into the south lane and then back into the north lane; that cars so traveling passed the deceased's car (although the witness did not then know whose car it was); and that the last one so passing turned back into the west-bound lane some 10 to 15 yards east of the graveled road.

He testified that prior to, but not at the time of, the accident he had been working with some wiring under the dashboard of defendant's car. He testified that he heard defendant yell, heard the screeching of the tires, saw a green object in front of them, and that there the followed a crash. He testified that defendant's car went 15 feet after the impact; and that it hit deceased's car on the rear wheel and turned it around so that it stopped headed north. Deceased was assisted from his car and sat on the running board. Deceased said, 'I would have never turned if I had seen you.'

After both parties had rested, defendant renewed his motion for a dismissal, which the trial court sustained.

Plaintiff here grants the rule that the burden of proving negligence is on the party alleging it. Ulrich v. Batchelder, 143 Neb. 697, 10 N.W.2d 637, and cases there cited. Plaintiff contends that she met that burden of proving negligence on the part of the defendant by a presumption of due care on the part of the plaintiff's deceased and by the photographs and testimony of the deputy sheriff as to appearance, location, direction, measurement, etc., of the skid marks.

Plaintiff relies on the rule as stated in Anderson v. Nincehelser, 152 Neb. 857, 43 N.W.2d 182, 183, as follows: 'Where there is no eyewitness, no direct evidence of the accident causing the injury, the facts and circumstances may be proved by circumstantial evidence, and the presumption is raised by the instinct of self-preservation on behalf of the deceased that he was not guilty of contributory negligence, but was in the exercise of due care and caution for his own safety, unless the contrary is shown.'

Plaintiff produced no eyewitness. She contends that defendant's witness who was riding with him was not an eyewitness. Concededly he did not testify with the accuracy as to detail or attention that might have been expected of a witness who realized an impending accident or who was a 'right seat' driver. He did, however, testify as above recited. We need not determine that contention.

Plaintiff argues that under the above rule the presumption of due care makes a prima facie case of negligence. She misreads the rule.

Here plaintiff had the burden of proving defendant's negligence. The defendant had the burden of proving his defense of contributory negligence of the plaintiff's decedent under the rule that: 'If defendant pleads that the plaintiff was guilty of contributory negligence, the burden is upon him to prove that defense and this burden does not shift during the trial. However, if the evidence adduced by the plaintiff tends to prove that issue, the defendant is entitled to receive the benefit thereof * * *.' Griess v. Borchers, 161 Neb. 217, 72 N.W.2d 820, 823.

Plaintiff in effect argues that a presumption of negligence arises against the defendant because of a presumption of due care on the part of the deceased.

The Supreme Court of the United States in Looney v. Metropolitan R. R. Co., 200 U.S. 480, 26 S.Ct. 303, 306, 50 L.Ed. 564, has given the obvious answer to this contention: 'A plaintiff in the first instance must show negligence on the part of the defendant. Having done this, he need not go farther in those jurisdictions where the burden of proof is on the defendant to show contributory negligence. In other words, if there is no evidence which speaks one way or the other with reference to contributory negligence of the person killed, then it is presumed that there was no such negligence. Thomp.Neg. § 401; Baltimore & Potomac R. R. Company v. Landrigan, 191 U.S. 461, 24 S.Ct. 137, 48 L.Ed. 262; Texas & Pacific Railway Company v. Gentry, 163 U.S. 353, 16 S.Ct. 1104, 41 L.Ed. 186. But the negligence of a defendant cannot be inferred from a presumption of care on the part of the person killed. A presumption in the performance of duty attends the defendant as well as the person killed. It must be overcome by direct evidence. One presumption cannot be built upon another. Douglass v. Mitchell, 35 Pa. 440; ...