Knoche v. Pease Grain & Seed Co.

277 N.W. 798, 134 Neb. 130, 1938 Neb. LEXIS 5

• Court: Nebraska Supreme Court
• Decided: February 22, 1938
• Docket: No. 30193
• Status: Published

Opinions

Carter, J.

This action was brought by Minnie M. Knoche, special administratrix of the estate of John Henry Knoche, deceased, to recover damages for the death of John Henry Knoche alleged to have been caused by the negligence of the driver of a truck belonging to' the defendant. The verdict of the jury was for plaintiff in the sum of $5,000. The trial court required a remittitur of $1,000 with which plaintiff complied. Judgment was thereupon entered for $4,000. Defendant’s motion for a new trial was overruled and from this order an appeal is taken. Plaintiff filed a cross-appeal claiming that the trial court erroneously required the remittitur and praying that this court sustain the verdict for the full $5,000.

The evidence discloses that the deceased was traveling west on Court street in the city of Beatrice and at the intersection of Court and Bluff streets made a left turn to the south apparently with the intent of proceeding south on Bluff street. The truck, belonging to the Pease Grain & Seed Company, was traveling east on Court street. At the intersection in question, the car and truck collided, causing the death of John Henry Knoche, the driver of the car.

Plaintiff contends that the driver of the truck failed to keep a proper lookout, that he failed to yield the right of way to the deceased, that defendant failed to have sufficient brakes upon its truck, that the truck was driven at an excessive rate of speed, and that it was not equipped with booster brakes as required by statute. The defendant claims that the deceased failed to signal his intention to make a left turn, that he angled across or cut the corner of the intersection contrary to l&w, and that he entered the intersection at a time when the truck was proceeding through it.

The plaintiff called as a witness one Arthur Engler who testified that he was standing near a window in a filling station located on the southwest corner of the intersection and that, upon hearing the crash resulting from the collision, he looked up and saw what happened from then on. He testified that he did not see the truck before the collision occurred. This witness was permitted to testify over objection that in his opinion the defendant’s truck was traveling “right at 40 to 45 miles an hour” when it came into the intersection. Subsequently this witness testified that he considered how the truck pushed the car around, the fact that the truck proceeded on and broke off a telephone pole, and the tracks made by the truck, in determining its rate of speed. He testified that the truck traveled 12. or 13 feet during the time he saw it and that “it was just a flash like that and he was right under that pole.” Plaintiff produced no other evidence of excessive speed except that which the circumstances surrounding the accident disclosed. The truck driver testified that he was not driving over 20 miles an hour. The question of excessive speed of the truck was submitted to the jury. The evidence that the truck was traveling 40 to 45 miles an hour was improperly admitted. In Bergendahl v. Rabeler, 133 Neb. 699, 276 N. W. 673, we said: “This court has held that the speed of an automobile is not a matter of exclusive expert knowledge or skill and that any one with a knowledge of time and distance is a competent witness to give an estimate. Patterson v. Kerr, 127 Neb. 73, 254 N. W. 704; Serratore v. Miller, 130 Neb. 908, 267 N. W. 159. But it is very evident from the record that these witnesses had no reasonable time, means, distance or opportunity to formulate a basis for an opinion as to' the speed of defendant’s car.” The plaintiff claims that the testimony of the witness as to what happened after the collision was sufficient to provide the foundation for his testimony. Testimony based on these facts would be a mere conclusion of fact and an attempt to impinge upon the province of the jury. The question of the speed of the truck is one of the important issues in the case. The only evidence of excessive speed, other than a conclusion which might be drawn from the circumstances surrounding the accident, is that of the witness Engler. We are obliged to hold that this evidence was prejudicial to the rights of the defendant and constituted reversible error.- - ' •

The trial court also instructed' the jury with réference to the usé of defective brakes when' as a matter of fact there was no evidence by any one that the brakes on either the truck or the automobile were defective.' We have repeatedly held: “Where a question of fact that ‘is material to the case is submitted to the jury by the trial court, upon which there is no evidence to support a finding, it constitutes prejudicial error.” Roseland v. Chicago, M., St. P. & P. R. Co., 130 Neb. 637, 265 N. W. 882. See, also, Mannion v. Talboy, 76 Neb. 570, 107 N. W. 750; Tighe v. Interstate Transit Lines, 130 Neb. 5, 263 N. W. 483.

The record shows that the gross weight of the truck and its load exceeded 12,000 pounds. It further shows that the truck was not equipped with “power brakes, auxiliary brakes, or some standard booster brake equipment,” as required by section 39-11,106, Comp. St. Supp. 1935. The trial court properly instructed the jury on this point, but the contention that the failure of the defendant to comply with this section of the statute justified the giving of the instruction complained of ¡relative to defective brakes is without merit.

We have come to the conclusion that the trial Court erred in the respects noted and that, under the circumstances of this case, the rights of the defendant were prejudiced thereby. The judgment of the trial court is therefore reversed and the cause is remanded for a' new trial in accordance with the rules of law set forth in this opinion.

Reversed.