115 Neb. 295 | Neb. | 1927
Lead Opinion
Plaintiff sues to recover damages occasioned by the alleged negligence of defendant county to keep one of its highways in reasonably safe condition for public travel. Defendant admitted its duty to maintain the highway in such condition, denied negligence, and pleaded contributory negligence on part of plaintiff, which latter was denied by her. At the conclusion of plaintiff’s evidence, defendant interposed a motion for a directed verdict, which was sustained and case dismissed. From this judgment plaintiff appeals, and for reversal presents as error the sustaining of such, motion.
As to the law applicable to such a motion: In Wheeler v. Abbott, 89 Neb. 455, we held: “Where upon a jury trial, at the close of plaintiff’s evidence, the defendant moved the court for a directed verdict in his favor, the motion must, for the purpose of a decision thereon, be treated as an admission of the truth of all material and relevant evidence submitted and all proper inferences to be drawn therefrom.” This holding was approved by us in Schmelzel v. Leecy, 104 Neb. 672, and in Hall v. Union P. R Co., 113 Neb. 9.
The facts as reflected by the record are: That plaintiff is a minor; that the highway in question extends south on Fourteenth street of the city of Lincoln to the south line of Lancaster county and beyond; that at about five miles south of the corporate limits of such city there has been at the times mentioned herein a concrete bridge or culvert which crosses such highway at right angles; that Fourteenth street is paved and the highway for three-fourths of a mile beyond the city limits, and from there on is a graded road; that this highway is a main traveled way leading to and from Lincoln; that some 30 days or more prior to the date of the injury the county undertook to improve the
From the record as thus disclosed, it will be seen that plaintiff was not engaged in a joint enterprise, but was simply an invited guest, and was without control over the driver. Jessup v. Davis, ante, p. 1; Reudelhuber v. Doug
Further, it is plain that reasonable minds might draw different conclusions as to whether or not either or both of these contesting parties were guilty of negligence. Therefore, such question was one of fact and should have been submitted to the jury under proper instructions, and not determined by the trial court as a matter of law. McLean v. Omaha & Council Bluffs Railway & Bridge Co., 72 Neb. 450; Craig v. Chicago, St. P., M. & O. R. Co., 97 Neb. 426.
The judgment of the district court is reversed and the cause remanded for further proceedings.
Reversed.
Dissenting Opinion
dissenting.
In the view which I take of the evidence, the action was properly dismissed.