116 Neb. 835 | Neb. | 1928
Action by Ed DeGriselles, individually and as administrator of the estate of Frank DeGriselles, for damages for the loss of services and death of plaintiff’s minor son. Frank DeGriselles, a boy about nine years of age, was injured by a truck belonging to defendant and driven by his servant, from which injuries he died some four months after the accident. The case was tried to a jury, and after the evidence for both parties was concluded the defendant moved the court to direct a verdict for the defendant. The motion was overruled and the jury returned a verdict for the plaintiff in the sum of $5,000. Defendant’s motion for a new trial was overruled and judgment rendered upon the verdict. Defendant appeals and presents but one ground for the reversal of the judgment, namely, that the evidence is insufficient to establish negligence of defendant.
The grounds of negligence charged against defendant’s servant are: “(1) In failing to keep said truck under con
The place of the accident was in a public alley 16 feet wide, with brick buildings on either side, the one on the north being 97 feet in length and that on the south 100 feet. At the west end of the building on the south was a doorway 10 feet wide, used as an entrance to the basement and second floor by means of inclines, the building being used as a stable and garage. Immediately to the west of the building on the north was a vacant space measuring 68 feet on the alley, and used as a service yard, and from which wagons and trucks crossed the alley to enter the garage above mentioned. The two buildings were used by the Alamito Dairy Company, and teams and trucks to the number of 52 were accommodated by said garage. The alley was paved with cement and from the east to the west end was on an upgrade of 4.4 per cent. The accident occurred about 3:30 p. m., at which time the surface of the alley was dry. At the time of the accident there was standing in the alley on the south side close to the brick wall and about 50 feet east of the place of the accident a team and wagon which had delivered feed at the garage, which feed was elevated to the second floor by means of an outside hoist.
Defendant’s servant, Henry Bartels, was acquainted with the local situation above described, having made deliveries at that point almost daily for four years. On the day in question, as he was about to enter the east end of
At this point the testimony for the plaintiff as to the happening of the accident begins and is substantially as follows:
Witness O’Brien testified that he was coming out of the doorway of the garage, having come down the inclined approach just inside the doorway, and had gotten two or three feet into the alley and stepped back because he saw the truck approaching about fifteen feet east of him; no' horn was blown; saw the boy knocked down by the truck about three feet south of the north line of the alley and three and one-half to four feet west of the building on the north side of the alley; the right front wheel of the' truck hit him and ran up on the left side of the boy just above the hip; the boy’s body lay north and south under the truck with his feet a little to the east; the truck backed off the boy. The truck was running in high gear about fifteen .miles an hour. On cross-examination he stated that he saw the boy approaching, and the truck approaching, from the east and holloed to the truck driver both before and after he hit the boy; the boy was not running. “The boy was not rolling a tire when I saw him.” “The driver brought the truck to a stop within three or four feet after he put on the brakes; he could have seen the boy coming from behind that corner for a distance of about five or six feet; the front end of the truck was about four or four and one-half feet west of the wall when it stopped.” When the witness’ deposition was taken prior to the trial, he stated that the truck was about six or seven feet from the boy when he first saw it,
Witness Boye was standing at the east end of the wagon when the boy was hit; he heard no horn blown; thinks he would have heard the horn but could not say positively; “would not say the horn was not blown, but think if it had been I would have heard it.”
Witness Thompson testified that he was standing with Boye about 50 feet east of the accident when the truck passed going west through the alley, observed its speed and would estimate it at 12 to 15 miles an hour; was not paying particular attention to the truck; the truck after it backed off the boy was a foot or two beyond the building on the north side; did not remember of hearing a horn blown, was not paying particular attention, it might have blown; did not see the boy before the accident; attention first attracted to boy when saw truck stop — heard a noise pr a cry; picked up the boy who was conscious but squirming and holding his hand over his hip on the left side.
This constitutes substantially all of the evidence for plaintiff material to our inquiry.
Defendant’s evidence was as follows:
Henry Bartels, defendant’s servant, testified that he sounded the horn twice about half-way (25 feet) between the wagon and the corner where the accident happened; that he had not shifted into high gear when the boy came out from behind the building; shifted from low to intermediate just as he had passed the wagon; he was traveling in intermediate gear at approximately five or six miles an hour. The boy was running and had a tire; “he tried to stop himself, and slipped on the cinders on the paving, and slid right in front of my wheel;” the
Emil Bartels, brother of Henry, who happened to be riding with him, testified that the horn was sounded 26 or 25 feet from the corner; traveling in intermediate gear, and as they approached the corner this boy was rolling a tire and came around the corner; he wanted to stop and his feet slipped from under him on some cinders there and he slid under the right front wheel of the truck, and before we could stop, the wheel was on the boy; we were going about five or six miles an hour; his brother put his foot on the brake; grabbed the emergency brake, and the car traveled something like four or five feet before it struck the boy about one or two feet beyond the building. On cross-examination he stated he first saw the boy running out from behind the building just as they were coming to the corner; he had gotten about two or three feet into the alley before the accident; “I saw the tire first; it came ahead of the boy;” shifted to intermediate gear just as we got by the wagon; witness was 28 years old and his brother Henry 26.
Vernard Alexander, a boy of 15 years, working for the Alamito dairy, testified that he had been driving the horse which operated the hoist above mentioned and was just turning him into the chute leading to the basement of the barn on the south side of the alley, and turned around and looked where the truck was coming and saw this boy coming down the alley rolling a tire, “and he came to the alley and he tried to stop on some cinders that had been pushed
Harry Shively testified that he was shipping and receiving clerk for the Alamito dairy, working inside and downstairs; that he heard of the accident about two or three minutes after it happened. He did not see it, and when asked how he knew that the accident happened two or three minutes before they called him, answered: “Well, when I heard the horn sound it was almost instantaneous after I heard that that the word came to me to call the doctor.” He could not say definitely what automobile had sounded the horn.
The defendant contends that the evidence as outlined above is not sufficient to support the verdict in favor of the plaintiff and that his motion for an instructed verdict should have been sustained. The rule is well established in this jurisdiction that, where reasonable minds would draw different conclusions as to the establishment of certain facts, or from the facts established by the evidence, the case is one for the jury, and, therefore, before we can sustain defendant’s contention we must be convinced that all reasonable minds must conclude from the evidence that no actionable negligence of the defendant has been proved.
The first, third and fourth grounds of negligence may be considered together. Can it be said in reason that the driver of the truck did not have it under proper control when he brought it to a stop within three to five feet after the boy appeared around the corner of the building? We think not. There is no evidence in the record as to the distance within which an automoile truck traveling from 12 to 15 miles an hour can be stopped, but it is undisputed that in the present instance it was stopped in from 3 to 5 feet, and if anyone will take the trouble to measure that distance upon the ground and then consider the ordinary
In Thrapp v. Meyers, 114 Neb. 689, it was held: “A driver of an automobile should have his car under such
This brings us to the second charge — failure to blow the horn. For plaintiff we have three witnesses who testified that they did not hear any horn blown; one of them, O’Brien, saying that the horn did not blow. His entire evidence on the point was as follows: “Q. Was there any horn blown up to the time that you had gotten out into the alley three feet? A. No. Q. Was there any horn blown after that time? A. No.” No foundation was laid for his testimony on this point beyond the fact that he stepped into the alley and saw the car 15 (10 or 11) feet east of him, or, as elsewhere stated, 7 feet from where the boy was struck, which would place the car just opposite the witness as he stepped into the alley and retreated to let the car pass. He does not say he would have heard the horn if sounded, or that he was paying any attention to
The case of Gandy v. Estate of Bissell, 81 Neb. 102, cited by plaintiff, is not controlling. The first syllabus is in the following language:
“Where the judge of a district court, who has had the advantage of seeing the witnesses and observing their demeanor while testifying, overrules a motion for a directed verdict, and there is sufficient competent evidence in the*845 record, standing alone, to sustain the verdict returned by the jury, this court will not disturb such a verdict and reverse a judgment rendered thereon, even though the evidence in opposition to the verdict is such, as shown by the record, that a peremptory instruction might have been sustained.”
If this language may be construed as holding that a refusal of the trial court to sustain a motion of the plaintiff for a directed verdict is not reversible error where the evidence in opposition to the verdict is such that a ruling granting the motion would have been sustained, we are constrained to withhold our approval thereof. Of course, if there was evidence sufficient to sustain a verdict for either party, a directed verdict would be improper; but if the evidence in opposition to the verdict is such that it would not be error to sustain the motion, and the verdict goes against the moving party, we are unable to perceive why an order overruling it is not reversible error. If this were not the rule, and the trial court refused to direct a verdict for the plaintiff, and the jury rendered a verdict for the defendant, the appellate court would be powerless to reverse the judgment, even though all reasonable minds would agree that the plaintiff was entitled to recover. We are not prepared to adopt such a rule. The' case cited, however, was reversed on two other grounds, and the ruling on the point in question has not the force it might have if it was upon a point necessary to the decision of the case. We hold in this case that the evidence, as shown by the record, is entirely insufficient to show that the defendant was in any way negligent, and that the verdict finds no support therein. It follows that the judgment of the district court must be reversed and cause remanded.
Reversed.