Zeller v. Howard County

• Citation: 227 Neb. 667,419 N.W.2d 654
• Decision Date: 26 February 1988
• Docket Number: No. 86-081,86-081
• Parties: Dorothy J. ZELLER, Appellant, v. COUNTY OF HOWARD, Appellee. Dorothy J. ZELLER, Personal Representative of the Estate of George Zeller, Deceased, Appellant, v. COUNTY OF HOWARD, Appellee.
• Court: Supreme Court of Nebraska

Page 654

419 N.W.2d 654

227 Neb. 667

Dorothy J. ZELLER, Appellant, v. COUNTY OF HOWARD, Appellee.

Dorothy J. ZELLER, Personal Representative of the Estate of George Zeller, Deceased, Appellant, v. COUNTY OF HOWARD, Appellee.

No. 86-081.

Supreme Court of Nebraska.

Feb. 26, 1988.

Syllabus by the Court

1. Political Subdivisions Tort Claims Act: Appeal and Error. A district court's factual findings in a case brought under the Political Subdivisions Tort Claims Act, Neb.Rev.Stat. §§ 23-2401 et seq. (Reissue 1983), will not be set aside unless such findings are clearly incorrect.

2. Trial: Evidence: Witnesses. In a bench trial of a law action, the court, as a trier of fact, is the sole judge of the credibility of witnesses and the weight to be given their testimony. Among the factors entering into the trial court's resolution of any conflicts of evidence are such items as the respective interests of the parties in the litigation; the demeanor of witnesses, including the parties, while testifying before the court; the apparent fairness exhibited by witnesses; the extent to which testimony of various witnesses is corroborated; and the reasonableness or unreasonableness of testimony from the witnesses.

3. Judgments: Appeal and Error. In reviewing a judgment awarded in a bench trial, the Supreme Court does not reweigh evidence but considers the judgment in the light most favorable to the successful party and resolves evidentiary conflicts in favor of the successful party, who is entitled to every reasonable inference deducible from the evidence.

4. Negligence: Proof. To prevail in an action based on negligence, a plaintiff must prove four essential elements: the defendant's duty not to injure the plaintiff, a breach of that duty, proximate causation, and damages.

5. Negligence. A defendant's conduct is the cause of an event if the event would not have occurred but for that conduct; conversely, a defendant's conduct is not the cause of an event if the event would have occurred without the defendant's conduct.

6. Proximate Cause: Words and Phrases. The proximate cause of an injury is that cause which, in natural and continuous sequence, unaccompanied by any efficient, intervening cause, produces the injury, and without which the result would not have occurred.

7. Negligence: Trial. Determination of causation is, ordinarily, a matter for the trier of fact.

8. Proximate Cause: Trial. When there is conflicting evidence, determination of proximate cause is a question or matter for the trier of fact.

9. Negligence: Proximate Cause: Words and Phrases. In negligence law, an efficient intervening cause is new and independent conduct of a third person, which itself is the proximate cause of the injury in question and breaks the causal connection between original conduct and the injury.

L.W. Kelly, Jr., of Kelly & Kelly, Grand Island, for appellant.

William T. Wright of Jacobsen, Orr, Nelson & Wright, P.C., Kearney, for appellee.

BOSLAUGH, WHITE, CAPORALE, SHANAHAN, and GRANT, JJ., and BRODKEY, J., Retired, and COLWELL, District Judge, Retired.

SHANAHAN, Justice.

In consolidated cases, Dorothy J. Zeller appeals from judgments for Howard County in actions brought under the Political Subdivisions Tort Claims Act, Neb.Rev.Stat. §§ 23-2401 et seq. (Reissue 1983). The alleged negligence involves an intersection of county roads and the absence of a stop sign for the road intersecting the arterial road.

In late morning of May 9, 1981, George and Dorothy Zeller were traveling in their northbound pickup on a Howard County graveled road to their daughter's home. Zellers were delivering fresh grass clippings in their pickup's uncovered box. Apparently, this was the first time Zellers had used this particular county road as a route to their daughter's house. Although the speed limit was 50 miles per hour, see Neb.Rev.Stat. § 39-666(1)(f) (Reissue 1984), George was driving the pickup at 15 miles per hour because he did not want the clippings to blow out of the pickup.

As the Zeller pickup headed north on the virtually level and straight road toward the eventual accident site, an intersection of gravel-surfaced county roads, the topography prompted Dorothy Zeller to remark about the distinguishable and upcoming intersection: "This looks like a bad corner." At that point, on Zellers' right, 100 feet south of the intersection, a slope ascended eastward to a knoll, which obstructed a northbound motorist's view to the right concerning the east-west crossroad leading to the intersection which lay ahead of Zellers. No stop sign was in place and erect to control northbound traffic into the intersection. The Zeller pickup did not stop before it entered the intersection. Simultaneously, but from the east, an automobile, driven at 45 miles per hour by Don L. Lewandowski, was approaching the intersection. No evidence indicated that George Zeller applied the pickup's brakes, took evasive action, or saw the Lewandowski automobile before the collision. Lewandowski's car left 40 feet of preimpact skid marks. According to Dorothy Zeller, she "saw a sudden--like a puff of smoke, which was dust, and that was it. He had hit us. Mr. Lewandowski had hit us." The point of impact on Zeller's pickup was at the juncture of the pickup's cab and box. As a result of the collision, Dorothy Zeller received bodily injuries, and George Zeller sustained bodily injuries which caused his death shortly after the accident.

As personal representative of George Zeller's estate and in her individual capacity, Dorothy Zeller filed suits against Howard County and alleged that the county's negligence consisted of failure to inspect "traffic controls for said intersection for several weeks before May 9, 1981," and failure to replace and maintain the stop sign for northbound traffic entering the intersection, after the county had been "notified the stop sign was down."

Among the allegations in its answer filed in each of the Zeller cases, Howard County referred to a motorist's obstructed view to the east of the intersection and claimed that George Zeller's conduct in driving into the intersection, notwithstanding his obstructed view, was the proximate cause of the collision.

In Lynn v. Metropolitan Utilities Dist., 225 Neb. 121, 125, 403 N.W.2d 335, 338-39 (1987), this court stated:

A district court's factual findings in a case brought under the Political Subdivisions Tort Claims Act will not be set aside unless such findings are clearly incorrect. [Citations omitted.]

In a bench trial of a law action, the court, as the "trier of fact," is the sole judge of the credibility of witnesses and the weight to be given their testimony. Among the factors entering into the trial court's resolution of any conflicts of evidence are such items as the respective interests of the parties in the litigation; the demeanor of witnesses, including the parties, while testifying before the court; the apparent fairness exhibited by witnesses; the extent to which testimony of various witnesses is corroborated; and the reasonableness or unreasonableness of testimony from the witnesses. [Citation omitted.] "In reviewing a judgment awarded in a bench trial, the Supreme Court does not reweigh evidence but considers the judgment in the light most favorable to the successful party and resolves evidentiary conflicts in favor of the successful party, who is entitled to every reasonable inference deducible from the evidence."

(Quoting from Alliance Nat. Bank v. State Surety Co., 223 Neb. 403, 390 N.W.2d 487 (1986).)

At trial, the only evidence pertained to the absence of a stop sign which otherwise would have protected the arterial road from northbound traffic. Several witnesses testified about the stop sign in question. The accident site was characterized as a "blind intersection," with the northbound approach into the intersection likened to "coming out of a tunnel" on account of the slope or hill which obstructed a motorist's view to the right on the northbound road. As a motorist approached the intersection, the view of the east-west road on the motorist's right was "totally obstructed" until the motorist was 10 feet from the south edge of the intersecting east-west road. During those last 10 feet of the northbound road into the intersection, a motorist's view to the right was unobstructed for at least a quarter mile.

Approximately 2 months before the accident, Howard County received notice that the intersection's stop sign for northbound traffic had been knocked down, apparently by vandals. Investigation immediately after the accident disclosed that the stop sign was lying in a foot-deep depression adjacent to the northbound road. The base of the steel post for the stop sign was embedded in the ground 20 feet from the south edge of the east-west road, but was bent toward that road. The stop sign or shield, still attached to the bent post, was lying at ground level within two parallel wheel marks on the roadside surface.

At conclusion of the evidence, nothing demonstrated Howard County's negligence in initially placing the stop sign at its installation site or in constructing the intersection and its approaches. Howard County requested that the court state, in writing, its conclusions of fact. See Neb.Rev.Stat. § 25-1127 (Reissue 1985) (a court's written statement of factual conclusions in a bench trial). See, also, Lindgren v. City of Gering, 206 Neb. 360, 292 N.W.2d 921 (1980) (permissible request for court's written conclusions of fact in an action under the Political Subdivisions Tort Claims Act). As requested, the court filed its conclusions, namely, Howard County was not obligated to install, maintain, or replace a stop sign at the intersection in question; George Zeller was negligent to a degree more than slight; the obstructed view to the east of the intersection was obvious to George Zeller as he approached the intersection; and Howard County's conduct was not the...