286 N.W. 696 | Neb. | 1939
Plaintiff has appealed from a judgment for defendants, in an action for damages arising out of an automobile collision. At the close of the evidence both parties moved for a directed verdict, and the court thereupon discharged the jury, made a personal inspection of the scene of the accident, and dismissed plaintiff’s petition.
It is contended (1) that the trial court erred in viewing the premises without the consent of the parties, and (2) that the evidence does not sustain the judgment.
The first contention is predicated on the following journal entry: “On June 9, 1938, after submission of this case, the court inspected the place of the accident taking Exhibit Number 3 with him, and this case now coming on for final decision, the court finds generally against the plaintiff on his cause of action.” The exhibit referred to was a photograph of the intersection involved, which purported to show the skid marks of plaintiff’s car.
Whether the court, on a trial without a jury, may view the premises without the consent of the parties is a question on which the authorities are divided. In 26 R. C. L. 1085, sec. 90, it is declared that the weight of authority is to the effect that it is error to do so. An examination of the decisions generally, however, does not sustain this statement. The doubt contained in the cases is not so much of the right to view, as of the use which the trial judge is permitted to make of the information thus acquired.
The extent of a trial court’s right to view the premises, on a trial without a jury, has never been clearly defined in this state. There are a number of equity cases in which such a view has been made, but where the right of the court to do so does not appear to have been directly challenged.
Logically, however, a trial judge must be held to have the same power to view the premises, on a trial without a jury, as exists in him to permit inspection on a jury trial, and such view or inspection necessarily is entitled to the same effect in both' instances. Any other position would stamp a trial judge as meriting less confidence than, and as lacking the wisdom and restraint of, an ordinary jury. It would also create an absurd procedural distinction between court and jury trials.
The right of the trial court to permit inspection in jury eases is expressly recognized in section 20-1108, Comp. St. 1929, “whenever, in the opinion of the court, it is proper for the jury to have a view of property which is the subject of litigation, or of the place in which any material fact occurred.” This section is merely confirmatory of the power generally recognized as existing in a trial court even apart from any statute. 26 R. C. L. 1016, sec. 13; 64 C. J. 1200. Whether a view shall be permitted does not depend upon the consent of the parties, but is a matter solely for the discretion of the trial court. Alberts v. Husenetter, 77 Neb. 699, 110 N. W. 657.
A view of the premises is held in this state to be evidence and not merely a means of enabling the jury better to construe and apply the evidence adduced in court. Chicago, R. I. & P. R. Co. v. Farwell, 59 Neb. 544, 81 N. W. 440. On rehearing, in 60 Neb. 322, 83 N. W. 71, an opinion was written by Judge Sullivan, where it was said: “We have again carefully examined the grounds of our decision, without being able to reach a conclusion different from the one already announced. Upon the question in controversy judicial opinion is divided, the greater number of adjudged eases supporting the theory that the impressions gathered by the jury in making an inspection are not evidence. This
The rule which was thus adopted has been reaffirmed in Drollinger v. Hastings & N. W. R. Co., 98 Neb. 520, 153 N. W. 619, Stull v. Department of Roads and Irrigation, 129 Neb. 822, 263 N. W. 148, and Rundall v. Grace, 132 Neb. 490, 272 N. W. 398.
In Stull v. Department of Roads and Irrigation, supra, it was said: “This court is committed to the rule that the viewing of the premises involved in litigation by the jury is evidence, and not merely a means of enabling the jury better to construe and apply the evidence adduced in court. * * * However, we take the view that such evidence by itself, and in the absence of other evidence tending to sustain the issue, is not sufficient to sustain a finding or an award of damages.”
In the light of what has been previously said, it must be held, as a matter of consistency and logic, that, on a trial without a jury, the judge, in the exercise of his discretion, may view the premises without the consent of the parties. “But it is the wise policy of the law that, in receiving evidence of any kind in judicial proceedings, it should, so far as practical, be done in the presence of the parties, or with opportunity to be present. We commend this as a rule of judicial propriety in making inspections.” Adalex Construction Co. v. Atkins, 214 Ala. 53, 106 So. 338.
As in the case of an inspection by a jury, any restrictions attempted to be imposed by an appellate court upon the effect which a trial court may give to such a view are purely artificial. Actually, it constitutes evidence, because the relevant and competent facts revealed thereby necessarily
In this case there was no abuse of discretion, and plaintiff is not entitled to a reversal on that ground. The remaining question is whether the evidence is sufficient to sustain the judgment.
The accident occurred at the intersection of Twenty Seventh street and Sheridan boulevard', in the city of Lincoln, about 11:30 a. m., on a clear day. Twenty Seventh street runs north and south, and Sheridan boulevard runs somewhat diagonally, in a northwesterly and southeasterly direction. Sheridan boulevard is an arterial highway, and there are stop signs as one approaches it on Twenty Seventh street. Both streets are paved. Plaintiff’s sedan was proceeding south on Twenty Seventh street, and defendant’s bus, which had come from Falls City, was going westerly on Sheridan boulevard.
Plaintiff’s testimony showed that he was driving approximately 15 miles an hour at the time of the collision; that he had stopped at the stop sign 33 feet north of the intersection, looked in both directions, started his car in low gear, and shifted into intermediate as he proceeded into the intersection; that it was possible to see a distance of
The driver of defendant’s bus testified that he was traveling 15 miles an hour before the collision occurred; that, when he was approximately 50 feet east of the intersection, he saw plaintiff’s car approach the stop sign and fail to stop; that he sounded his horn in warning, but plaintiff apparently was unable to stop; that he applied his brakes as he went into the intersection and swung to avoid a collision, but that the cars came together in an angular crash. He claimed further that the skid marks of plaintiff’s car extended from a point north of the intersection to' 'the place of collision, 13 feet south of the north curb line. A photograph was introduced in evidence which it is contended corroborates this testimony.
A police officer, who was a witness for plaintiff, testified that the skid marks were only 9 feet in length and were all within the intersection. Another witness said that the marks were 12 feet long. A passenger in the bus testified that his attention was attracted to plaintiff’s car when he heard the bus driver sound his horn and felt him apply his brakes, throwing him forward in his seat. He stated that plaintiff was at that time about even with, or just beyond, the stop sign and was proceeding toward the intersection. Both vehicles, in his opinion, were traveling at about the same speed.
We shall not attempt to detail the testimony further. Enough has been set out to indicate its irreconcilable conflict. . The situation is not controlled by undisputed physical facts. If the fact that the trial court viewed the premises were to be ignored, there is still sufficient competent evidence in the record to support a judgment for either party, depending upon the testimony that the court chose to believe.
For convenience in this opinion, we have referred to the owner of the bus as the defendant, although the driver was sued jointly with him.
Affirmed.
