Yost v. Nelson
| Decision Date | 10 November 1932 |
| Docket Number | 28275 |
| Citation | 245 N.W. 9,124 Neb. 33 |
| Parties | ROBERT YOST, APPELLEE, v. NELS S. NELSON, APPELLANT: IOWA-NEBRASKA LIGHT & POWER COMPANY, APPELLEE |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Lancaster county: LINCOLN FROST JUDGE. Affirmed.
AFFIRMED.
Syllabus by the Court.
1. In a law action, controverted issues of fact, where the evidence is in dispute, are for the jury to determine.
2. In a personal injury action, plaintiff may recover for medical and hospital expenses, necessitated by the injury, if he has paid or incurred liability for such expenses.
3. In a personal injury action, an allegation in the petition that plaintiff has suffered injuries consisting of " bruises, lacerations and contusions to his * * * head; a deep cut and severe bruise to his right eye, * * * that plaintiff's nose was severely fractured," etc., is sufficient to permit evidence to be received that, as a result of such injuries, plaintiff's brain was affected.
4. Two persons riding in an automobile are not engaged in a joint enterprise, where one is the owner and operator of the car and the other a mere guest, and when the guest is not contributing to the expense of operating the car, has a different destination from the owner, a different purpose in going, and has no right to control the action of the owner and operator.
5. A judgment will not be reversed because of harmless error.
6. " Diminution of earning capacity is not, of necessity, measured by its diminution in the particular calling in which plaintiff was engaged at the time of the injury, or by the amount of wages which he was then receiving; hence, plaintiff may show that he was capable of earning more than he was earning at the time of the injury, and the jury may consider what plaintiff might have been able to earn but for the injury in any employment for which he was fitted." 17 C. J. 903.
7. Under the evidence outlined in the opinion, held that the verdict was not excessive.
Appeal from District Court, Lancaster County; Frost, Judge.
Action by Robert Yost against Nels S. Nelson, impleaded with the Iowa-Nebraska Light & Power Company. From a judgment in favor of the plaintiff and against him, the defendant Nels S. Nelson appeals.
Affirmed.
Good, Good & Kirkpatrick and Herman N. Mattley, for appellant.
Flansburg & Lee and John O. Sheldahl, contra.
Heard before ROSE, DEAN, GOOD, EBERLY, DAY and PAINE, JJ.
This is a personal injury action in which plaintiff recovered judgment, and defendant has appealed.
Plaintiff was injured in an automobile collision which he charges was caused by negligence of defendant. On June 14, 1930, plaintiff was riding in a Chevrolet coupe, owned and operated by one Gray. They were traveling east on the S. Y. A. highway a few miles east of Seward. Defendant Nelson, accompanied by his wife and two guests, was traveling west on the same highway. The two cars collided. The point of contact between the two cars was the right front end of each, to the width of about 18 inches. After the collision defendant's car remained almost in the same position in the highway as at the time of impact. It was headed slightly to the south of west. Gray's car was thrown a considerable distance, and came to rest on the north side of the highway and off the traveled portion, facing nearly south.
In his petition plaintiff charges that defendant was traveling at a high rate of speed and on the south or left-hand side of the highway, and that, when it was apparent that Gray's car could not pass defendant's car on the south or right-hand side of the highway, an instant before the collision Gray sharply turned to the left to avoid a collision. On the other hand, defendant contends that Gray was traveling on the north or his left-hand side of the highway and that, when they were approaching very close together, defendant turned to the left, trying to avoid a collision. Defendant contends that after the collision his car was near the center of the highway; that the left front wheel was a little to the south of the center of the highway; the right front wheel to the north of the center, and that both of the rear wheels of his car were to the north of the center. The evidence on behalf of plaintiff tends to show that defendant's car came to rest, or stopped, near the south side of the highway, and too close to permit a car, going in the opposite direction, to pass with safety on the south side thereof. The evidence on behalf of plaintiff tends to support his contention, while that on behalf of defendant tends to support defendant's contention. There is a hopeless and irreconcilable conflict in the evidence.
In law actions it is the function of the jury to determine issues of fact as to which the evidence is in conflict. Defendant's contention that the evidence is insufficient to justify a finding that defendant was negligent in the premises is not well founded.
Defendant argues that the trial court erred in permitting the jury to consider, as an element of damages, medical and hospital expenses incurred by plaintiff in treatment and care of his injuries, sustained in the automobile collision, on the ground that plaintiff has not paid nor become legally liable for such expenses. The evidence shows that the hospital and medical bills were paid by plaintiff's employer, as an advance of funds to plaintiff, and that he was to recompense his employer for the funds so advanced. Plaintiff, in a personal injury action, may recover for medical and hospital expenses, necessitated by the injury, if he has paid such expenses or incurred liability therefor. The question of recovery for medical and hospital expenses was properly submitted to the jury.
It is argued that it was error to admit evidence of an injury to plaintiff's brain, on the ground that the particular injury was not pleaded and was not the natural and necessary result of injuries alleged in the petition. In his petition plaintiff alleged that he had sustained severe and serious injuries to his person, "consisting, among other things, of bruises, lacerations and contusions to his * * * head; a deep cut and severe bruise to his right eye, * * * that plaintiff's nose was severely fractured," etc.
We are of the opinion that the allegations of the petition were sufficient to permit proof that the brain was affected as a result of the bruises and contusions on his head, and that the facts do not bring the case within the rules of law contended for...
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