10 N.W.2d 705 | Neb. | 1943
Suit for death of plaintiff’s intestate, Otto H. Doerfler, in an automobile head-on collision on a bridge about one mile west of Morrill on the night of December 15, 1939, about 10 p. m. Doerfler was driving a Dodge passenger sedan and was alone, and defendant was driving a truck and semi-trailer loaded with eight tons of hay. His brother, Warren Prewitt, was with him in the truck. The passenger car \yas proceeding eastward and the truck westward.
The case was before the court once before, and is reported in 141 Neb. 243, 3 N. W. (2d) 435. The juries in both trials found for the defendant. One of the principal contentions of the plaintiff in the present appeal is that the findings and holdings of this court in the case above referred to, that is, 141 Neb. 243, 3 N. W. (2d) 435, constituted a holding that, as a matter of law, the defendant was guilty of negligence, and that the only question to submit to the jury on the second trial was the amount of damages. The former opinion does not indicate an intention that the case was remanded solely for the ascertainment of damages.
There would be no purpose in discussing the errors referred to in. points 3 and 4 of the syllabus of the former opinion if the case was reversed only to ascertain the amount of the damages, since these errors do not relate to the question of damages, and the court clearly intimates that the case would be retried on all issues remaining in the case.
The general rule is that, when a case is remanded for a new trial it is for trial generally. 4 C. J. 1239. In the absence of a record to the contrary after a general remand for a new trial, it will be presumed that the trial court in submitting the case to the jury found an existing difference in the evidence which required that all issues of fact be again submitted. Missouri P. R. Co. v. Fox, 60 Neb. 531, 83 N. W. 744. We are unable to determine from the record before us whether the evidence in the present case is sub
An examination of the record shows the following facts which in our opinion are sufficient to justify the jury in finding for the defendant: The accident happened about ten o’clock on a dark, windy, cold night. Mr. Prewitt had left Morrill about 10 o’clock and was driving westward, at a reasonable rate of speed, about thirty miles an hour, on his own side of the road and observing all the rules of the road. As he approached the bridge where the fatal accident occurred he saw the lights of a car coming toward him from the west. This was on highway No. 26 which runs almost exactly straight at this place. Both cars were approaching the bridge where the collision occurred. When the car coming toward defendant Prewitt was from 75 to 200 yards west of the bridge and Prewitt’s car 60 to 70 feet east of the east side of the bridge the Doerfler car turned to the north side of the road. The bridge is 32 feet long. When the Doerfler car was perhaps 50 yards west of the bridge and Prewitt about 30 feet east of the bridge Prewitt became alarmed and said to his brother: “What in the world is that fool going to do?” and began to turn his car to the left. There is a side road leading north immediately west of the bridge and Prewitt seems to have surmised that the Doerfler car intended to turn north on this road. As Prewitt began to turn left he applied his brakes. Doerfler’s car was about 50 feet west of the bridge and not over 50 to 100 feet from Prewitt’s car when the Doerfler car “just careened across the road, it just flopped back” to its own side. There is evidence that the cars were approaching each other at more than 100 feet a second. Immediately after Doerfler’s car turned back its lights loomed up in Prewitt’s face, there was what Prewitt describes as
What caused Doerfler to be on the north side of the road does not appear. It probably appeared to Prewitt at the time that he intended to drive north on the side road immediately west of the bridge. One witness who is somewhat discredited states that he was walking on the road just west of the bridge and that Doerfler went around another car just before the accident and was too slow in getting back to his side of the road. This witness claims to have been walking on the south side of the road and Doerfler may have taken to the north side to avoid striking him. There was no evidence that he was intoxicated. It was admitted that Doerfler had suffered a loss of vision in one eye prior to this accident. Whatever the cause there is ample evidence in the record to justify the jury in finding that Doerfler was on the wrong side of the road until immediately before the accident. One reputable witness who followed only a few hundred yards behind Prewitt testifies that Doerfler was on his left side of the road at the time of the accident, but we are inclined to believe from the other evidence in the case that he was mistaken. It is apparent from reading the bill of exceptions that the jury was justified in finding that Doerfler was guilty of contributory negligence and the trial court correctly instructed the jury “if you find from the evidence that the negligence of the plaintiff's intestate was in any degree more than slight, or that the negligence of the defendant was in any degree less than gross in comparison therewith, then, or in either of such cases, you should find that the plaintiff is not entitled to recover, * * .” Can the court say on this record that the negligence of Doerfler was not more than slight? It was his initial negligence in being on the wrong side of a busy highway on a cold, dark, windy night that caused the situation out of which the accident arose. Prewitt was confronted with an emergency, a car coming toward him on the wrong side of the road. His spontaneous exclamation:
Appellant insists that it was error to submit the question of Prewitt’s negligence to the jury, especially that it was error to submit to the jury the question of whether or not an emergency existed which might excuse Prewitt’s action in turning to the left just before the accident, claiming that these questions were foreclosed by the syllabus and opinion on the first appeal. It cannot be held as a matter of law on the record now before us that Prewitt was guilty of negligence. The facts shown by the present record are that Mr. Prewitt was on his own side of the road and traveling at a lawful rate of speed when he saw the other car coming toward him at a rapid rate of speed and on the
A motion was filed asking the court to prohibit Frank Glebe, the county attorney for Scotts Bluff county, from appearing as attorney for defendant. It appears that Mr. Glebe acted as one of the attorneys for defendant throughout the first trial without objection, although he was county attorney at that time. The motion objecting to his appearance in the case was filed on November 21, 1942, which was the Saturday before the trial was to begin on Novem
These are the principal errors relied upon by the plaintiff for a reversal. Many others are alleged, but none nor all of them are sufficient to require a reversal.
The judgment of the trial court is therefore affirmed.
Affirmed.
This is an action by Douglas Callahan, administrator of the estate of Otto H. Doerfler, deceased, plaintiff and appellant, against Gather F. Prewitt, defendant and appellee. The action is for damages on account of the death of the decedent claimed by plaintiff1 to have been brought about by the negligence of the defendant.
The case was before this court previously and in 141 Neb. 243, 3 N. W. (2d) 435, it was reversed and remanded for a new trial.
On the present appearance of the case an earlier opinion was released, which opinion appears, ante, p. 787, 10 N. W. (2d) 705.
On examination of motion for rehearing and a further study of the entire matter we have concluded that the opinion on the second appearance of the case in this court fails in certain respects to announce sound principles of law and legal procedure.
To the extent necessary to state them for the purposes of this part of the opinion, the facts were the following: In the night of December 15, 1939, a dark, windy and cold night, the defendant started westward from Morrill, Ne
At the time of the collision defendant was driving in the center of the bridge and there was not sufficient space on either side for Doerfler to pass. There is evidence that Doerfler was driving at a high rate of speed before and at the time of the accident and that he was not driving on his right side of the road. As a result of the collision Doerfler was killed.
In his petition plaintiff claimed that the collision was caused by the negligence of the defendant. The answer charges that the collision was caused by the negligence of Doerfler.
From an examination of the evidence adduced at the first trial this court made a finding that the defendant was guilty of negligence in the manner of driving his truck at the time of the accident. The summary of the finding is in the first syllabus point, as follows: “When a driver of a truck, proceeding at 30 miles an hour, sees a rapidly oncoming car, driving on one side and then the other of the center line of the road, the driver of the truck is negligent if he steadily proceeds in the center of the road and a collision occurs because the oncoming car was not left sufficient room on either side'to pass the truck.”
The defendant contended that he was confronted with an emergency and was entitled to the benefit of the rule relating to emergencies, that is, if he was confronted by a sudden emergency not created by his own negligence he was not, in determining his course of action, held to the same degree of care as if he had had time for reflection, and he was not negligent provided he used such care in meeting the emergency as an ordinary, prudent person would use under such circumstances.
These findings were definite and unequivocal and, within the limits of the evidence upon which they are based, became final, res judicata and binding upon the parties. By an abundance of áuthority they became the law of the case to that extent.
In Anheuser-Busch Brewing Ass’n v. Hier, 61 Neb. 582, 85 N. W. 832, this court said: “The decision of questions presented to this court in reviewing the proceedings of the district court becomes the law of the case, and, for the purposes of the litigation, settles conclusively the points adjudicated.”
In Kuhns v. Live Stock Nat. Bank, 138 Neb. 797, 295 N. W. 818, this' court said: “So, too, all matters decided expressly or by necessary implication by this court in its opinion in. reversing the first judgment became the law of the case. This applies not merely to all questions actually and formally presented, but to all existing in the record and necessarily involved in the decision. Such points will not be reconsidered in this appeal.”
In Blum v. Truelsen, 139 Neb. 282, 297 N. W. 136, this court quoted with approval the following from 30 Am. Jur. 920, sec. 178: “It is a fundamental principle of jurisprudence that material facts or questions which were in issue in a former action, and were there admitted or judicially determined, are conclusively settled by a judgment rendered therein, and that such facts or questions become res judicata and may not again be litigated in a subsequent action.” This statement was again approved in Bohmont v. Moore, 141 Neb. 91, 2 N. W. (2d) 599.
This holding was in strict conformity with the factual and trial procedural background of Missouri P. R. Co. v. Fox, 60 Neb. 531, 83 N. W. 744.
Before passing to an analysis and comparison of Missouri P. R. Co. v. Fox, supra, it may be well to point out clearly-that the rule that the findings of this court on a first appeal become the law of the case on a retrial of the same issues is not available where on a second trial the facts are materially and substantially different. With the part of the opinion in Missouri P. R. Co. v. Fox, supra, sustaining: this view we are in accord.
With this in mind we observe that in Missouri P. R. Co. v. Fox, supra, on its first appearance, this court made certain findings as was done in this case. There, as here, on a later appearance, it was contended that the former findings became the law of the case and that the pertinent issues were not the subject of inquiry on h retrial. This court held to the contrary, but not on the ground that the findings were not the law of the case. The rule itself was approved.
The basis for the holding that the “law of the case rule” did not apply was a presumption indulged by the court that the trial court had before it the evidence of the former trial and that the evidence on the later differed substantially from that on the earlier. In the opinion it is stated: “We are unable to say from the record now before us that the evidence now presented is not materially different from what it was on the first trial of the ease.” Further it is stated: “If the evidence is the same, or substantially so, and made to thus appear, doubtless the rule would apply. Whether or not it is the same, we are unable to say from the record before us, which is now to guide us in our exam
On the same basis all of the issues were submitted to the jury on the second trial of this case and this resubmission was upheld in our former opinion.
We are now of the opinion that the'basis for the two opinions is violative of sound reason and well-recognized legal principle.
In the first place it assumes either that the trial co.urt had before it the bill of exceptions of the first trial or that the case was presided over by the same judge and his recollection of the evidence was sufficient to enable him to say that the evidence on the second trial was materially different from that on the first.
In either event the effect of the presumption is to say that under, such circumstances as these the trial court has the right to determine questions of fact on evidence which is not subject to review by this court, since the supreme court will not, for the purpose of determining whether the district court reached a correct conclusion, examine any evidence which was not presented to the district court. Oma
In the second place it appears unreasonable and illogical to adopt and sustain a view that a party in whose favor a finding of fact is made amounting to a declaration of the law of the case on the facts presented or as some of the authorities say, a finding which is res judicata, should be required to assume the burden of showing that the facts on a second trial of the case were not materially or substantially different from the facts on the former trial. This runs counter to the fundamental ideal of common law and equity jurisprudence, which ideal has in practice been jealously guarded by judicial decision. No reason is apparent why, in such instances as this, the party who in theory at least, if not in fact, makes the contention that facts found are not the true facts should be relieved from sustaining- the burden of his contention.
It is therefore the holding of this court that where on appeal findings of fact are made which become the law of the case and there is a remand for a new trial, on such retrial, such findings are binding on the parties, the trial court and this court, unless on the retrial the facts relating to the issues upon which the findings were made are materially and substantially different from those adduced on the former trial, and that the burden of showing a difference shall rest upon the party making the claim.
In order to avoid confusion in the future we deem it advisable to say here that the burden is evidentiary and is for determination by the court and not the jury.. As to methods, of course, the introduction of the bill of exceptions of
In the light of the view now taken of this case it becomes necessary to discuss some of the other assignments of error set forth in the brief of appellant.. Attention is directed first to claimed errors in the admission and rejection of evidence.
Assignments Nos. 4, 5, 6 and 7 relate to the use of intoxicating liquors by Doerfler at a tavern about 500 feet west of the Nebraska state line in Wyoming immediately before proceeding to the point where the fatality occurred. The distance from the scene of the accident was but a few miles and the interval between was evidently but a matter of minutes. In the light of the other evidence this could not be considered in proof of intoxication, but we have no doubt, because of the brief interval of time and the closeness of its relationship to the accident and the incidents leading to it, of its admissibility as a circumstance proper to be considered by the jury in determining whether or not Doerfler was guilty of negligence which was the proximate cause of the accident or which contributed to it.
In assignment No. 8 appellant complains of the fact that a witness was permitted to say that Doerfler possibly had been drinking. This was clearly error.
In assignment No. 9 is a contention that it was error to allow an inquiry of a tavern keeper as to the character of his liquor license. This was error but it could not have affected the result, therefore it must be treated as harmless.
The same may be said of assignment No. 11 wherein defendant was allowed to say substantially that he could not detect a change in the speed of the Doerfler automobile.
As to No. 12, there being no cross-petition, it was error to permit defendant to testify to extent of care given him by a physician.
Assignments Nos. 15 and 16 relate to an effort on the part of defendant to get into evidence a partly filled whisky bottle claimed to have been found in Doerfler’s automobile after the accident. We find no misconduct in this effort and for the reasons stated in our discussion of assignments Nos. 4, 5, 6 and 7 we think this evidence was admissible.
Assignment No. 19 asserts that it was error to admit evidence of drinking intoxicating liquor by Doerfler before the accident at times not even remotely connected therewith. The admission of such evidence was clearly erroneous.
Complaint is made that instruction No. 17 given by the court is not a proper statement of the duty and requirement of a motorist when he meets with a sudden emergency. This assignment does not require determination in the light of the holding that the question of negligence of the defendant became the law of the case or res judicata on the second trial because of the absence of a showing that the facts adduced were materially and substantially different from those adduced at the first, but since on another trial a different state of facts may be shown it appears proper to discuss it in order to avoid error in instruction on the emergency rule. The instruction is as follows:
“You are instructed that when one is confronted with a sudden peril requiring instinctive action, he is not, in determining his course of action held to the exercise of the same degree of care as when he has time for reflection, and in the event that a motorist suddenly meets with an emergency which would naturally overpower the judgment of a reasonably prudent and careful driver so that momentarily he is thereby rendered incapable of deliberate and intelli
“However, the negligence of a truck driver is not excused by the sudden emergency rule, if he deliberately drives in the middle of the road, across a bridge which is in safe condition for travel from one side to the other, and of ample width for two cars to pass, and thus leaves insufficient room for an approaching car to pass in its proper side.”
The particular complaint is that it leaves out the qualification that the rule is not applicable if the emergency is caused by the person claiming the benefit of the rule. The complaint is well founded. There is an attempt in the second paragraph to cure the defect of the first. The effect of the second paragraph of the instruction was to tell the jury that the defendant wais entitled to the benefit of the emergency rule unless he deliberately did the things enumerated. This is an improper and unwarranted limitation of the rule. In Hughes v. Omaha & C. B. Street Ry. Co., ante, p. 47, 8 N. W. (2d) 509, is found the following: “This court, however, has recently said that the rule of sudden emergency cannot be successfully invoked by one who has brought that emergency upon himself by his own acts, or who has not used due care to avoid it.” See, also, McClelland v. Interstate Transit Lines, 142 Neb. 439, 6 N. W. (2d) 384. Not alone deliberation but any act or failure to act amounting to a lack of due care under the circumstances defeats the right to claim the benefit of the emergency rule.
Instruction No. 18 is vulnerable to the same objection as No. 17 since it leaves out the element of the due care required of the driver of the motor vehicle.
Other objections are made to introduction and rejection of evidence and to instructions given and refused but we do not consider that they require discussion.
It is obvious that the case must be reversed and remanded for a new trial. On a new trial it is equally obvious that the only matters for submission to a jury, in addition to instruction that the defendant was guilty of negligence, are
The opinion appearing, ante, p. 787, 10 N. W. (2d) 705, is vacated and set ¿side and the case reversed and remanded for a new trial in accordance with the terms of this opinion.
Reversed.