Behm v. Northwestern Bell Telephone Co.

491 N.W.2d 334, 241 Neb. 838, 1992 Neb. LEXIS 319, 1992 WL 319939
CourtNebraska Supreme Court
DecidedNovember 6, 1992
DocketS-89-1316
StatusPublished
Cited by20 cases

This text of 491 N.W.2d 334 (Behm v. Northwestern Bell Telephone Co.) is published on Counsel Stack Legal Research, covering Nebraska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Behm v. Northwestern Bell Telephone Co., 491 N.W.2d 334, 241 Neb. 838, 1992 Neb. LEXIS 319, 1992 WL 319939 (Neb. 1992).

Opinions

Hastings, C.J.

Plaintiff Dennis L. Behm appeals from an order of the district court overruling his motion for a new trial and a jury verdict in favor of the defendant, Northwestern Bell Telephone Company. This case was previously before this court in Mundt v. Northwestern Bell Tel. Co., 230 Neb. 192, 430 N.W.2d 530 (1988), at which time the court affirmed the district court’s previous order granting Northwestern Bell new trials after jury verdicts in favor of the plaintiffs. Most of the essential facts appear in Mundt, supra.

Assigned as error are the giving of certain instructions on intervening cause and contributory negligence, the admitting of certain evidence, and the allowing of testimony by defendant’s expert witnesses.

“All the jury instructions given must be read together, and if, taken as a whole, they correctly state the law, are not [840]*840misleading, and adequately cover the issues supported by the pleadings and the evidence, there is no prejudicial error necessitating a reversal.” Grote v. Meyers Land & Cattle Co., 240 Neb. 959, 973, 485 N.W.2d 748, 759 (1992).

“[I]n all proceedings where the Nebraska Evidence Rules apply, admissibility of evidence is controlled by the Nebraska Evidence Rules, not judicial discretion, except in those instances under the Nebraska Evidence Rules when judicial discretion is a factor involved in admissibility of evidence ....” State v. Messersmith, 238 Neb. 924, 936, 473 N.W.2d 83, 92 (1991). Therefore, the admissibility of evidence is reviewed for abuse of discretion where the Nebraska Evidence Rules commit the evidentiary question at issue to the discretion of the trial judge.

An issue in Mundt involved the giving by the trial court of NJI Civ. 3.41 on proximate cause and the failing to give NJI Civ. 3.43 on intervening cause. We stated as follows:

Having said this, it is apparent that the issue of an intervening (superseding) cause having been pleaded by Northwestern Bell, facts introduced justifying the instruction having been placed before the jury, and the instruction requested, it was prejudicial error for the trial court not to have given the instruction on an issue raised by the pleadings and evidence. Reeder v. Rinne, 183 Neb. 734, 164 N.W.2d 203 (1969).

Mundt, 230 Neb. at 196-97, 430 N.W.2d at 533.

This issue arose because of an incident occurring on June 9, 1983, when Lloyd Prettyman, an employee of the City of Alliance, was painting a warehouse owned by the city, using a “cherrypicker” truck. On an earlier date, Northwestern Bell had attached a telephone cable to the parapet wall of the warehouse, which was a freestanding facade of laid bricks not otherwise secured or braced.

Another employee of the city, Danuel D. Mundt, was on the ground operating the air compressor. Prettyman motioned to Mundt to give him more hose for the spray gun, and Prettyman testified that he raised the bucket to the point where the boom of the cherrypicker touched the cable and raised it “[o]h, quarter of an inch.” Mundt enlisted the aid of two fellow [841]*841employees, Behm and Lot Curtiss Griffith, who were in the area, to help him move the compressor. After the compressor was moved, Prettyman resumed painting. At a point 5 to 7 minutes after he had moved the bucket, Prettyman felt the truck shake and saw that the wall had collapsed. The collapse of the wall injured Mundt, Griffith, and Behm, who had been standing next to the wall and were hit by falling debris.

At the first trial, see Mundt, Rex Perrin testified that he arrived at the scene of the accident shortly after it occurred. He stated that Prettyman told him, “I didn’t see the wire and I must have caught it and that’s what pulled it from the wall.” Mundt, 230 Neb. at 194, 430 N.W.2d at 531.

For all intents and purposes, the record in this trial duplicates the evidence found in Mundt, although some additional facts will be added as we proceed. Therefore, the basic issue in the two cases is the same.

In Mundt, the court instructed the jury on proximate cause in the words of NJI Civ. 3.41 as follows:

“By ‘proximate cause’ is meant a moving or effective cause or fault, which, in the natural and continuous sequence, unbroken by an intervening cause, produces the occurrence, and without which the occurrence would not have taken place.
“A ‘proximate result’ is that result brought about or produced by a proximate cause. It must have been a natural and probable consequence which was, or ought to have been reasonably foreseen or anticipated in the light of attendant circumstances. It is not required, however, that the particular injury, or the happening, was or should have been foreseen.”

(Emphasis omitted.) Mundt, 230 Neb. at 195, 430 N.W.2d at 532.

During this second trial, Northwestern Bell had also requested that an instruction in the form of NJI Civ. 3.43 be given on intervening cause. NJI Civ. 3.43 reads as follows:

An efficient intervening cause is a new and independent act, itself a proximate cause of an injury, which breaks the causal connection between the original wrong and the injury. A person is not legally responsible for an injury if it [842]*842would not have resulted but for the interposition of an efficient intervening cause, which he should not have reasonably anticipated.

The trial court did not give this instruction in Mundt, but did so in this, the second trial. In Mundt, Northwestern Bell had argued that “since the jury did not know what the legal term ‘intervening cause’ meant, it therefore could not make a determination as to whether Prettyman’s act of touching the cable was of sufficient character to break the chain of causation and insulate Northwestern Bell from liability.” Mundt, 230 Neb. at 196, 430 N.W.2d at 532.

Continuing, as we have previously mentioned, the court in Mundt stated,

Having said this, it is apparent that the issue of an intervening (superseding) cause having been pleaded by Northwestern Bell, facts introduced justifying the instruction having been placed before the jury, and the instruction requested, it was prejudicial error for the trial court not to have given the instruction on an issue raised by the pleadings and evidence.

Mundt, 230 Neb. at 196, 430 N.W.2d at 533.

Concluding, we said:

In this case we are faced with the fact that the phrase “intervening cause” is mentioned in the proximate cause instruction, but was never defined in any instruction given. We are unable to conclude that the absence of an instruction on intervening (superseding) cause did not affect the jury’s deliberations. The trial court did not abuse its discretion in granting the motions for new trial.

Mundt, 230 Neb. at 197, 430 N.W.2d at 533.

Plaintiff seizes upon our language in Mundt

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Behm v. Northwestern Bell Telephone Co.
491 N.W.2d 334 (Nebraska Supreme Court, 1992)

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Bluebook (online)
491 N.W.2d 334, 241 Neb. 838, 1992 Neb. LEXIS 319, 1992 WL 319939, Counsel Stack Legal Research, https://law.counselstack.com/opinion/behm-v-northwestern-bell-telephone-co-neb-1992.