*1 toward the applied of the farm and purchase price about his financial transactions Tom was impeached. The existence aof confidential that extended relationship to financial transactions dispute.
We for allow of the trial court opportunity observe the witnesses and conclude' is clear and convincing in of the trust support imposed District Court.
The judgment is affirmed.
Affirmed.
LeRoy
re
Estate
deceased.
Tichota,
Henry
LeRoy
Niemeyer,
appellee,
Tichota,
v. Estate
appellants.
deceased,
et al.,
Jewell, Otte & Gatz, for appellants.
Erickson, Sederstrom & Johnson, for appellee. Heard J., Spencer, before C. White, Boslaugh, JJ. McCown, Newton, Clinton, McCown, J.
This is an damages personal action
77 jury re- resulting accident. from an automobile $170,000. the sum turned a verdict the over- assignment is directed The sole of error verdict ruling directed for a of the defendant’s motion *2 failing a motion to sustain and in dismissal, is no judgment notwithstanding There the verdict. posture In the issue the as the amount of verdict. ato ver- entitled case, was this the defendant unless be affirmed. must dict as a matter plaintiff, spent 27-year-old Henry Niemeyer, the hunting coyote at a February afternoon in 1970, There were Nebraska. Albion, location southwest occupied by en- approximately and hunters 15 vehicles dry, gaged in cold with the hunt. The was weather Niemeyer along a little Plaintiff was snow the fences. driving eguipped a Chevrolet automobile two-door communicating two-way other with a radio with hunters on a other hunters were citizen’s band. Two in his car with him. along p.m.,
Around drove north proceed- eastern side of the section where hunt was ing county proceeded graveled and then on road a west hilly on the north side of the was section. road per He and the drove limit 50 miles hour. was proceeded over the crest of hill to the downhill hill, west. near the bottom of passed pickup truck of Dennis who Sullivan, was parked along waiting the north ditch road proceed. hunt Plaintiff talked Sullivan radio. Sullivan told him that there were other vehicles going any him ahead of and there use further. was stopped Plaintiff then turned around at bottom hill, some 50 the Sullivan up and headed back hill to the truck, east. The proceeded was his side of he the road as gear just He east. shifted into second he before reached passed. truck, Sullivan waved as Sullivan watched his outside rearview mirror as up saw an- plaintiff proceeded hill. Sullivan the east hill from the crest of the other car come over dust extreme an road, the center followed of the de- identified later cloud. Mercury. esti- Sullivan cedent Tichota. going of 65 miles in excess mated the Tichota car was per the center hour. Both toward cars were He road the center. somewhat south getting noticed neither car out of road the other after Sul- and the accident occurred seconds first cars livan car. collided Tichota As “* * * up the ends in the air of both cars went they up just seemed to come down, went down.” Sullivan could tell whether Tichota skidding thought plain- before He going approximately tiff hour at the time of impact the collision. Sullivan observed a distance of 80 feet. *3 occurred collision 140 feet west of the crest of the hill. The skid of the marks Tichota began car at the crest of the hill and continued to the point of the collision. At the commencement of the exactly skid, marks were in the center of the road. There were no plaintiff’s skid marks behind car. portion width of the traveled of the road varied.
It was 21 feet at the crest .of the hill where the skid began. marks It was 19 feet 6 immediately inches east impact of the and immediately area west of the impact area. The width was not at measured highway patrolman also made other following measurements of the cars the accident. From right plaintiff’s rear of edge car to the south of the road was 3 feet 8 inches and from the left rear plaintiff’s car the north side road was right feet plaintiff’s 6 inches. The front tire of car edge feet was 6 from the south of the road. The left front tire of the car Tichota was 7 feet from the south the Tichota front
edge road, edge north feet 6 inches inches north, impact tires slid 3 the rear completely the skid marks. off not expert qualified witness engineer, anas A mechanical performed tests reconstruction, various in accident weights stipulated of cars and calculations, degree based assump- proceeded on the basic incline, going per Niemeyer’s that tion opinion the collision. In his the time of the hour at speed to skid it car as commenced Tichota per of collision the hour, miles 55.8 speed hour. The car was 31.6 miles Tichota engineer, expert witness, mechanical also a defendants’ substantially those calculations were testified expert agreed different his own. witnesses speed plaintiff’s if used, that under greater, formulas speed also Tichota would be speed greater, plaintiff’s less, if of the Tichota also be car would less. accident Tichota here,
As result of the passengers passengers three his car died. Two Niemeyer’s car were also killed. The very resulting sustained himself mental and severe physical impairment. He was unable to testify. Thus, Sullivan, Dennis who collision pickup in the rearview truck, mirror of his was the eyewitness. sole
There is issue to the amount verdict. only appeal issue The this accident on this whether facts of
require a verdict for the defendant as a properly matter law whether issues were sub- jury mitted under the *4 statute. plaintiff guilty common if the any of
negligence, slight, however which to contributed cause injury, contributory negligence his barred his re- covery. changing As a means the harshness doctrine rigidity rule, of the law old common comparative negligence has de- fault or relative adopted statutory veloped. version of its Nebraska 25-1151, R.R. in 1913. Section brought provides: actions person recover “In all 1943, S. damages property to a negligence by the fact that the another, caused guilty contributory negli- plaintiff may have been recovery contributory gence not bar a shall when plaintiff negligence negligence of the gross comparison, of the in plaintiff defendant was con- negligence tributory of the shall be considered mitigation damages jury proportion in the amount attributable plaintiff; questions and all contributory negligence jury.” shall be for consistently court
This has held that the test the stat- provides upon any degree ute negligence is not based absolute upon comparative
but rather test of the parties. relative of the In Johnson v. Roueche, 716, 2d 1, N. W. this court held that the “slight” “gross” employed words com- parative negligence act of this state are terms. or defendant slight, is not to gross, be evaluated as or otherwise, standing alone. degree criterion which the is to be measured is the extent by comparison thereof with the of the de- fendant. upon
The defendant relies the case of Buick v. Stoehr, 629, Neb. support N. 2d W. of the con- tention that defendant is entitled to as a mat- ter readily of law. That distinguishable. case two cars involved there met at the crest of a hill on a graveled country road. There was also an intersection point. at that The cars of ap- defendant (cid:127) proached speed, the same neither of any speed them in excess limit. *5 wrong the road of side substantially on the tiff was substantially on its was the defendant the car of while the defendant saw of the road. side own plaintiff the did applied brakes while car and tiff’s the he apply after his brakes to have the that case, circumstances the Under defendant. equal to plaintiff if not least at the was This court greater of the defendant. the than plaintiff’s more “was that the determined compared slight the the de- as than presented no other under fendant, and that be reached reasonable could conclusion guilty was minds than as matter of law.” a more case and acci- in the Buick the accident While country aon head-on collisions here dent graveled virtually point. similarity ends at that road, the quality extent The nature substantially cases is different. two approached the defendant’s driver before us, case hill in the middle the crest of a drove over speed speed substantially a in excess of road at proceed- moment, was limit. same ing up hill and the other side of same some speed a from its crest at hour. At feet the impact, plaintiff’s rear moment entirely own road the front on his side while at most foot his car a a half imaginary Roughly centerline. over three-fourths plaintiff’s on his own side of road wrong on the of the road. one-fourth side conversely wrong three-fourths on the Tiehota one-fourth the road and its own side of the side put the Tiehota car driver of on his brakes speed Using figures feet. and slid computed by beginning of the skid, and end computation simple expert mathematical witnesses, that it took a little over two seconds demonstrates might be said the Tichota car that 140 feet. to skid the hill in the the crest of that when he drove over already did, it middle of road at apparent plaintiff’s too late avoid this accident. was, seconds failure see Tichota car two keep proper Whether lookout. course, failure to might the accident could or have avoided momentary looking during he been two- had ahead *6 say speculative. least, second time To interval is might it is a matter as minds draw to which reasonable different evidence. conclusions from the comparisons making required by the statute negligence a defend- between and of applicable. there ant, is no is Neither flat formula which comparison by compar- is the item limited an item degree negligence ison specific the kind and involved in process It acts. seems clear that of com- parison disparity quan- should measure between negligence tum of the total of a defendant and the quantum negligence plaintiff. of the total of a provision
It should be noted here that the final requires statute that “all questions negligence contributory negligence jury.” language shall be for the obviously While that not does affect the court’s decide case as a emphasize matter of it does fact that deter- questions mination of contributory comparative measuring and the of them are basically generally factual issues which are for deter- jury. mination As we said in Johnson v. Roueche, question N. W. 1: 2d “The existence of is for the trier of may the facts where different minds reasonably draw different conclusions the evi- dence.”
Under the might here, reasonable minds reasonably draw different conclusions from the evidence. say cannot We the defendant was entitled to a made The determinations of law. as a verdict matter respects in all correct court the trial were is affirmed. Affirmed. participating briefs. Smith, J., S'pencer,- dissenting. J., opinion majority here- respectfully from the
I dissent I because believe n more compared when have been di- a verdict should defendant’s driver and defendant. rected for the undisputed occurred,. collision
It is undisputed evidence the crest the hill. The west is that both cars were at the centerline across the impact. skid marks behind 140 feet of There were none the car car, the Tichota behind hunting group coyotes. tiff. Plaintiff his apparent paying to traffic he was attention skidding Tichota car therefore not see the did approached The absence of fact that across the marks and the skid conclusively keeping centerline indicates he proper lookout. *7 case not. too different Buick v. Stoehr
This (1961), 629, 111 N. 2d where W. the center of the In that over case cars were we negligence “In said: an action based which the application rule has wherein dispute that the shows comparison more than tiff’s that of the action defendant should be dis- aor verdict directed.” missed