Lamberth v. Omaha & Council Bluffs Street Railway Co.

Chappell, J. This action was filed in the district court for Douglas county to recover damages for personal injuries alleged to have been sustained by plaintiff in a collision between plaintiff’s truck and defendant’s street car. Trial to a jury resulted in a verdict for defendant upon which the trial court entered judgment. Motion for new trial was overruled and plaintiff -appealed, assigning as error that instructions given by the trial court numbered 1 to and including 7, respec [214] tively, were erroneous, and that the verdict and judgment entered thereon are not sustained by the evidence. We find that instruction number 6 was erroneous and prejudicial to plaintiff’s rights but that all of plaintiff’s other assignments of error are without merit. The plaintiff adduced competent evidence in his behalf substantially in conformity with and supporting the material allegations of his petition. It is in substance that on December 19, 1942, at about 11:20 p. m., plaintiff was driving his lighted one and one-half ton truck north on North Twenty-fourth street in Omaha, Nebraska. It was cold, snowing at intervals, and the streets were icy and slippery. He was driving north astride defendant’s northbound track at approximately 15 miles an hour. A car parked at the east curb suddenly pulled out to the left, eight or ten feet in front of him. Plaintiff blew his horn and swerved his truck left to avoid striking the car. To avoid going too far to the left he then put on his brakes and stopped, headed north and to the east on defendant’s southbound track. At that time the evidence is that defendant’s lighted street car traveling south was more than a block away from him. Plaintiff then started to pull his truck off the southbound track but because of the icy condition of the street the wheels slipped, his truck was stalled and would not move off the track. By that time defendant’s street car was approximately 100 to 125 feet away coming toward him without slackened speed at approximately 20 miles per hour. Plaintiff’s wheels on the truck continued to spin and the back end of it slid around to the east until the truck stood in a north and westerly direction. The street car gong was sounded and although the street car could have been stopped within 40 or 50 feet it came on without slackened speed and the left front of it crashed into the plaintiff’s truck with great force and violence shoving it back 18 or 20 feet to the southeast and against a parked car. There was evidence adduced by and in behalf of plaintiff that he suffered painful, serious and permanent injuries and damages in the collision. Defendant then adduced competent evidence substantial [215] ly in conformity with and supporting the material allegations of its answer. Its witnesses admit that it was cold, blustery and snowing at times. Its evidence is in substance that the southbound track is slightly down grade to the point of collision. A block or a block and a half away the motorman driving defendant’s street car south, 15 or 20 miles an "hour, saw the lights of plaintiff’s truck driving north astride the northbound track on its own side of the street at a rate of speed estimated to be 15 miles an hour. The motorman was watching and suddenly plaintiff’s headlights were shining into the motorman’s eyes and plaintiff’s truck was headed northwest over on the southbound track almost directly into the street car, 40, 50 or 75 feet away. The motorman sounded the gong, put on his brakes, slowed down to 10 or 12 miles an hour and the impact came, throwing plaintiff’s truck into a parked car to the southeast. The motorman testified that plaintiff did not stop or slow down and was in motion at the time of the impact. He never saw the car of plaintiff stopped with its wheels spinning 100 or 125 feet away. Other witnesses who were passengers on the street car testified that plaintiff’s truck was in motion at the time of the impact but were unable to estimate his speed. The motorman testified that at 15 to 20 miles an hour it was possible to stop the street car within 40 or 50 feet by the use of the instruments at his disposal. There was evidence adduced by defendant that the injuries and damages suffered by plaintiff in the collision were not as serious or extensive as claimed by him. Bearing all this evidence in mind, together with the issues presented by the pleadings, we have examined the instructions about which plaintiff complains. In doing so we are unable to find that instructions numbered 1, 2, 3, 4, 5 or 7 given by the trial court were prejudicially erroneous to any rights of plaintiff requiring reversal. In view of the disposition of the case hereafter made we do not consider it necessary to discuss them separately. However, instruction number 6 about which plaintiff complains is a more serious matter. In that instruction, [216] which is complete in and of itself, the trial court told the jury: “If you find that the plaintiff ran into the street car of the defendant, in that event plaintiff’s negligence would bar his recovery and your verdict would have to be for the •defendant.” In conformity with rules which are well established in this jurisdiction we have only recently held that: “An instruction which sets out a state of facts, and authorizes a verdict for one of the parties upon a finding of such facts, is •erroneous, unless it includes every fact necessary to sustain a verdict in favor of such party, unless the omitted facts .are conclusively established.” “Where such instruction is •complete in itself, the error therein is not cured by the giving of other instructions which correctly state the law or the facts essential to a recovery by such party.” In re Estate of House, 145 Neb. 670, 17 N. W. 2d 883. See, also, Sanders v. Chicago, B. & Q. R. Co., 138 Neb. 67, 292 N. W. 35. A mere reading of instruction number 6 demonstrates that it does not include every fact necessary to sustain a verdict in favor of the defendant and an examination of the record discloses that the omitted facts were controverted ■and not conclusively established. In Kor v. American Eagle Fire Ins. Co., 104 Neb. 610, 178 N. W. 182, this court held: “An instruction which ignores the principal issues in the case, and authorizes the jury to base their verdict, upon their finding as to a single •controverted fact not decisive of those issues, is erroneous.” See, also, Knapp v. Chicago, K. & N. R. Co., 57 Neb. 195, 77 N. W. 656. The issues for decision by the jury were the alleged negligence of the parties as respectively charged in plaintiff’s petition and defendant’s answer. The mere fact alone that plaintiff’s truck may have been moving forward at the time of the impact or collision with defendant’s street car would not in and of itself under the circumstances presented be negligence per se and prevent plaintiff’s recovery or require the jury to return a verdict for defendant. By instruction number 6 the trial court in effect told the jury that it did. [217] We find that the instruction as given by the trial court comes squarely within the rules above quoted. Clearly it was erroneous and prejudicial to plaintiff’s rights. Therefore the judgment is reversed and the cause is remanded for a new trial. Reversed.