119 Neb. 765 | Neb. | 1930
This is an action by Herbert Lewis, Jr., a minor, nineteen years of age, by his father as next friend, to recover damages on account of injuries received in an automobile collision between an automobile in which plaintiff, appellee, was riding as a passenger and an automobile owned and
One of the principal grounds of error urged by counsel for defendant is the giving of instructions Nos. 1 and 4 by the trial court upon its own motion. Instruction No. 1 complained of sets out five acts of negligence alleged by plaintiff in his petition. By instruction No. 4 the jury were instructed that it was necessary for the plaintiff, before he could recover, to establish by a preponderance of the evidence that negligence on the part of the defendant in some one or more of the particulars set forth in plaintiff’s petition, or that the negligence on the part of the defendant in some one or more of the particulars set forth in plaintiff’s petition concurring with the negligence on the part of the driver of the automobile in which the plaintiff was riding at the time of the collision, was the proximate cause of the collision between said automobiles.
The particular complaint made against these instructions is that the trial court submitted' certain alleged acts of negligence on the part of the defendant which found no support in the evidence. The particular acts of negligence complained of, submitted by said instructions, are:
“That the defendant’s view of vehicles was obstructed by reason of the fact that there were three other occupants besides himself in his automobile, making it impossible for defendant to see approaching automobiles coming from the south toward the north.”
“That the defendant’s automobile was equipped with defective brake lining and braking appliances at the time of said collision.”
A proper consideration of this question and other alleged errors requires an examination of the evidence. There is little conflict in the evidence. The collision complained of occurred on the 24th day of June, 1928, at about 7:30 p; m., on Pacific street a short distance west of the private drive
The case of Yarbrough v. Carlson, 102 Or. 422, is directly in point upon the question presented. In that case plaintiff introduced evidence to show the speed at which defendant was driving 'both before and at the time of the collision ; the manner of his operation of the car at the time; the distance that plaintiff was dragged or propelled along the street before defendant stopped, also that after the collision defendant stated that he had defective brakes and could not avoid the collision. The defendant in that case requested the court to direct the jury that the plaintiff failed to introduce any competent evidence to prove that the brakes on his automobile were defective. This was refused and the court held:
“In an action for injury from a collision with an automobile, in which plaintiff alleged that defendant’s automobile was equipped with weak and defective brakes, evidence held sufficient for the jury.”
The evidence in this case justified the submission of the allegation of negligence that the brakes on the defendant’s car were defective.
There is no evidence from which it might be inferred that defendant’s view was obstructed by reason of there being three other occupants beside himself in his automobile so that in driving east he could not see cars coming from the south out of the private driveway. This particular claim of negligence on the part of the defendant should not have been submitted to the jury. The rule is:
“In stating the issues of fact in its charge to the jury, the court should submit to the jury only such issues as are presented by the pleadings and are in controversy, and*771 which find some support in the evidence.” Koehn v. City of Hastings, 114 Neb. 106.
The submission of this act of alleged negligence could not operate to the prejudice of the defendant, unless it can be said, from a consideration of all the evidence, it might have misled the jury, and induced them to return a verdict that, otherwise, they would not have returned. The evidence is ample to warrant the finding that defendant was guilty of the other negligent acts alleged in the petition and submitted to the jury for its consideration, and that one or more of such negligent acts which, alone or concurring with negligence of the driver of the car in which plaintiff was riding, was the proximate cause of the collision and consequent injury to plaintiff. Under the evidence the jury would not have been justified in finding otherwise. Plaintiff was a passenger in the car in which he was riding. He had nothing to do with its operation or control, and there is no evidence upon which the jury could find that he was guilty of contributory negligence. Under the evidence in this case, the submission of the act of alleged negligence complained of could not have misled the jury to the prejudice of the defendant. ,
The refusal to give instructions Nos. 1 and 3 requested by defendant is assigned as error. Instruction No. 1 relates to the duty of a driver of an automobile entering a public highway from a private driveway. The requested instruction was fully covered by instructions given by the court upon its own motion.
Instruction No. 3, requested and refused, was to the effect that, if the jury believed from the evidence that the accident in question and the resulting damage to plaintiff was caused solely by the negligence of the driver of the car in which plaintiff was riding, he could not recover. The requested instruction was not supported by the evidence. The evidence would not have warranted the jury in finding that the accident in question was caused solely by the negligence of the driver of the car in which plaintiff was riding. Error was not committed in the refusal to give the instructions requested by defendant.
“A witness who sees a moving car, and possesses a knowledge of time and distance, is competent to express an opinion as to the rate of speed at which the car was moving.” Omaha Street R. Co. v. Larson, 70 Neb. 591; Pierce v. Lincoln Traction Co., 92 Neb. 797; Andersen v. Omaha & C. B. Street R. Co., 116 Neb. 487.
The witnesses were qualified to give their opinion or estimate as to the speed at which defendant’s automobile was driven just prior to the collision. The fact that the automobile driven by defendant was coming toward them affected the weight rather than the competency of their testimony. The weight to be given their testimony upon this subject, under all the circumstances proved, was for the jury. Pierce v. Lincoln Traction Co., 92 Neb. 797. See 42 C. J. 1225, sec. 1026; Owens v. Iowa County, 186 Ia. 408.
Error is claimed on account of a ruling made by, the trial court sustaining an objection to the offer of a certain written statement signed by Mrs. Mary Ziskovsky, a passenger in the car of the defendant Miller at the time of the accident. It seems that five days after the accident and while Mrs. Ziskovsky was still in the hospital, in pain, with face cut and her tongue almost severed, Mr. English, one of the attorneys for the defendant and the insurance company, in which defendant carried liability insurance, called on her at the hospital and asked her about the accident. He wrote the statement in his own language. After he had written the statement it was not read by the witness nor does she remember that he read all of it to her. The defendant called her as a witness in his own behalf, inquired of her as to her knowledge of the speed of the defendant’s car at the time and tried to qualify her so that she might give an estimate of its speed just before the collision. She was unable to qualify, and was not asked to give her estimate of such speed. It also appears that at the time Mrs. Ziskovsky had a suit pending against the
“Where one has been misled or entrapped into calling a witness by reason of such witness, previous to the trial, having made statements to the party, or his counsel, favorable to the party’s contention, and at variance with the testimony given at the trial, and the party believed and relied upon such statements in calling the witness, and is surprised by the testimony on a material point, he may, in the discretion of the court, be permitted to show the contradictory statements made before the trial.”
Under the rule announced in that case, when a party calls a witness and is surprised or misled by the testimony of the witness on a material point, it rests in the discretion of the court as to whether he will be permitted to show the contradictory statements made before the trial. As we have pointed out, aside from the conclusions contained in the statement, there is very little in the statement that might be deemed contradictory of the testimony given by the witness when testifying in behalf of the defendant. The conclusions contained in the statement would not have been
Counsel for defendant also claim error in the sustaining of objections to the admission of a written statement made by Joe Ziskovsky a short time after the happening of the accident. The statement was taken by the same attorney who took Mrs. Ziskovsky’s statement. It appears that Mr. Ziskovsky was a passenger in the car of the defendant at the time of the accident; that he had assigned his claim for damages to his wife, who brought suit against the defendant to recover damages for herself and for damages alleged to have been sustained by him. The defendant called Mr. Ziskovsky as a witness in his own behalf. He was examined at length and he was unable to qualify so as to testify to the speed of defendant’s car at or about the time of the accident, nor was he asked to give his opinion as to such speed. The statement offered in evidence contains very little that is contradictory of the testimony of the witness when testifying in behalf of defendant. The only part of such statement that seems to be in any way contradictory of his testimony upon a material point is where he says that before the collision the defendant was driving “on the right-hand side of the road.” The record shows that, after the court excluded the entire statement, a portion of the statement was offered and received in evidence. The part of the statement received in evidence was: “Joe Ziskovsky. July 1, 1928, we were returning home on the Pacific street road past the Highland Country Club grounds. We were going east on the right-
It is contended by counsel for defendant that the verdict of $5,500 is so excessive it indicates that it was the result of passion and prejudice. The evidence shows that the plaintiff received severe and permanent injuries to his right hand. He had six tendons cut on the front and inner side of his wrist, also the ulnar nerve and four tendons cut on the back side of the wrist. Plaintiff was on the operating table for two and a half hours while the tendons and the ulnar nerve were sutured. The evidence of the doctor who treated him is that, due to both the severence of the ligaments and the nerve, there is no doubt 'but that there will be a permanent disability of the hand and wrist. The plaintiff also suffered contusions and bruises over his face and left ear and arm. Plaintiff at the time of the trial was suffering from a paralysis of two fingers of the right hand an-d had no sensation or feeling in the ulnar side of the ring finger. There is no doubt but what plaintiff suffered considerable pain from his injuries.
The plaintiff, on his cross-appeal, claims that the amount found by the jury should be restored and judgment given him for that amount. From a careful consideration of the evidence in relation to his injuries we do not believe that the verdict of the jury was so excessive as to indicate that it was the result of passion and prejudice. It is not contended by defendant that the amount as fixed by the trial court of $4,000 is excessive and we believe that the judgment for that amount as entered by the trial court should not be interfered with.
The judgment of the trial court should be and is hereby
Affirmed.