287 N.W. 66 | Neb. | 1939
This is an appeal from a jury verdict rendered in the district court for Hall county, in favor of the plaintiff and against the defendant in the sum of $1,436.52, for injuries sustained by the plaintiff and damage to his truck as the result of the negligence of the driver of defendant’s bus in maneuvering his bus to negotiate a turn on a detour road north from the Lincoln highway, running east and west near the westerly edge of the city limits of Cozad.
The plaintiff’s petition sets forth several specific acts of negligence on the part of the driver of defendant’s bus and evidentiary facts which will be covered in the opinion, and prays for damages. Defendant’s answer is a general denial; in addition, alleges contributory negligence on the part of the plaintiff; by cross-petition alleges specific acts of negligence on the part of the plaintiff, and prays for damages to the bus and in the loss of its use. Plaintiff’s reply is a general denial; and the answer to the cross-petition of defendant realleges negligence on the part of the driver of the defendant’s bus. The substance of the pleadings of the respective parties referring to negligence will be more fully covered in the opinion as occasion requires.
Defendant, at the close of the plaintiff’s evidence and at the close of all the evidence, moved for a directed verdict.
On the night of May 8, and the early morning of May 9, 1933, the plaintiff, one Charles Sherlock and a' hitch-hiker, riding with them, were proceeding in an easterly direction en route to Grand Island with a load of live stock, in plaintiff’s 1929 G.M.C. semi-trailer model truck. After they had passed about 12 miles beyond North Platte, Charles Sheriock took over the driving of the truck. The plaintiff was seated at his right and had dozed off to sleep. The hitch-hiker was sitting on the extreme right of the driver. At a distance of about a mile or two from the westerly edge of the city limits of Cozad, the defendant’s bus passed the truck. The speed of the truck was approximately 30- miles an hour, and the speed of the bus was fixed at 55 miles an hour. Both the truck and the bus at the time were proceeding in an easterly direction. Upon arriving at the westerly edge of Cozad and crossing a small bridge, a graveled road just east of the bridge constituted a detour. This road runs to the north. The turn onto the north road was at a sharp or acute angle, a little narrower than a right angle, and, in order to negotiate the turn onto the north road, it was necessary for the bus driver, owing to the length and size of the bus, with a capacity of 33 passengers, A.C.S., — at the time containing 31 passengers, — to maneuver the bus.
The driver’s handling of the bus to negotiate the turn to the north, concisely stated, follows: The bus had reached the point in question about 3 a. m.; the driver pulled up into the intersection, and, not being able to make the turn, had to pull up a little farther, with the front wheels east of the intersection. There was a barrel just north of the black line and about 40 feet east of the east side of the bridge, and the front wheels of the bus were even with the barrel. The
John Dietz, a bus driver, westbound, having come over the north detour, stated that the truck was off the highway and the bus was partly on the pavement, headed north. There was room enough for him to get around or drive through between the point west of the black mark, caused
The version of the plaintiff and his witnesses of the accident may be briefly summarized as follows: The driver of plaintiff’s truck testified that the bus had come off the side road south upon the paving running east and west. The front of the bus was headed north. The bus jerked and came to a stop and covered the full length of the pavement north and south, except about three feet from the north side thereof. The pavement was 20 feet wide. Witness could, not see the headlights on the bus and they were not visible when the bus was crossways and until the bus had driven onto the highway. He could have seen the bus within the
The plaintiff prepared a sketch, showing the paved road east and west, the detour to the north, and the south road, the position of both the truck and the bus at the time of the
We have detailed a greater portion of the evidence as to the accident and are convinced that in several instances there is a sharp conflict in the evidence, and especially so on the essential point submitted to the jury by the trial court in instruction No. 1, in referring to the negligence of the bus driver, if any, in the following manner: “That said bus was driven onto the highway from the south without stopping and without any signal or warning to the plaintiff of any intention to do so.”
We conclude that the rule of law applicable to á case where the evidence is in conflict and controverted on many essential points is reflected by the following authorities:
“In actions to recover damages for personal injuries, issues of negligence and contributory negligence are questions for the jury, where the evidence is conflicting.” Frish v. Swift & Co., 97 Neb. 707, 151 N. W. 165.
“A verdict of a jury in a law action based upon conflicting evidence will not be disturbed on appeal unless clearly wrong.” Potach v. Hrauda, 132 Neb. 288, 271 N. W. 795; Schindler v. Mulhair, 132 Neb. 809, 273 N. W. 217. See Boehler v. Kraay, 130 Neb. 233, 264 N. W. 745; Wilfong v. Omaha & C. B. Street R. Co., 129 Neb. 600, 262 N. W. 537.
“Where the facts in evidence tend to show both negligence and contributory negligence, the duty to make the comparison required by the statute rests with the jury, unless the evidence as to negligence is legally insufficient, or contributory negligence is so clearly shown that it would be the duty of the trial court to set aside a verdict in favor of the plaintiff. Ordinarily, wherever there is room for difference of opinion upon these questions, they must be submitted to the jury.” Disher v. Chicago, R. I. & P. R. Co., 93 Neb. 224, 140 N. W. 135. See, also, Haffke v. Missouri P. R. Corporation, 110 Neb. 125, 193 N. W. 257.
In addition, the record presents a statement in writing by plaintiff’s driver, Sherlock, apparently signed by him, and in his testimony he denies the signature. The defendant contends that testimony of this nature is unworthy of belief. The jury had the benefit of his testimony. They are the constitutional triers of fact and the sole judges of the credibility of the witnesses. “The credibility of witnesses and the weight to be given their testimony are questions for the jury.” Davis v. Bixby, 132 Neb. 25, 270 N. W. 834.
Defendant complains that the damages are excessive. We have considered the damage to the truck, the testimony as to its value immediately before and immediately after the accident, and the fact that the plaintiff received $135 for the truck, which was sold for junk, and have reviewed the medical testimony offered by the plaintiff. The plaintiff was injured between his shoulder blades and across the small of his back and at the time of trial, nearly five years later, was complaining of a stabbing pain, stating that he at times would go two or three months with no trouble; that he was not able to do any heavy lifting or to sit in one position for long at a time without causing pain across his shoulders, and the small of his back, and that the only manner in which he was able to sleep was by lying on the flat of his back. He had paid about $325 for chiropractic treatments in Alliance and in Omaha since the accident. He apparently was not examined by a medical doctor or a surgeon until about the time of trial. The defendant’s con
The medical testimony for the plaintiff discloses a slight lipping of the sixth cervical vertebra, suggestive of an old traumatic injury, such as a compression fracture of slight degree; that arthritis of the spine, which is a thickening of the cushioned tissues between the vertebrae, suffered by the plaintiff, was due to the injury he received in the automobile accident.
The physician testifying for the defendant found, by examination of the X-rays, no fracture and no evidence of misplacement, and attributed the condition of the plaintiff to systemic infection. This constitutes a direct conflict in the medical testimony, presenting a question for the jury as to the credibility of the witnesses testifying as to plaintiff’s condition.
Doctor Byers, a chiropractor, who had attended the plaintiff for a period of three years and had given him 36 or 38 treatments, testified that-he found “a taut muscular condition and a slight sublaxátion between the spinal processes of the spine.’’ “Sublaxation,” as used by this doctor, means a nerve impingement. He had examined the plaintiff a week before trial and found him to be extremely lame in the lower spinal region. His condition at that time was about the same as when the doctor first saw him.
We conclude from an examination of the testimony that the damages are not excessive.
Affirmed.