McClellen v. Dobberstein

204 N.W.2d 559, 189 Neb. 669, 1973 Neb. LEXIS 867
CourtNebraska Supreme Court
DecidedFebruary 23, 1973
Docket38435
StatusPublished
Cited by26 cases

This text of 204 N.W.2d 559 (McClellen v. Dobberstein) 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
McClellen v. Dobberstein, 204 N.W.2d 559, 189 Neb. 669, 1973 Neb. LEXIS 867 (Neb. 1973).

Opinions

White, C. J.

The appeal here is by the plaintiff from a $25,000 personal injury judgment resulting from a rear-end motor vehicle collision on Avenue M just outside Kearney, Nebraska. The gist of the plaintiff’s appeal is the contention that there was error in several instructions and that he was entitled to a directed verdict on the issue of liability. The defendants have cross-appealed contending that the plaintiff was guilty of contributory negligence as . a matter of law and that the action should be dismissed. We affirm the judgment of the district court and dismiss the cross-appeal.

Only the facts necessary for a disposition of this appeal will be set out in this opinion. The defendant Moreno, an employee of Dobberstein, abandoned a garbage truck owned by Dobberstein in the right side of the roadway of Avenue M because it was out of gas, placed no warning devices around it, and notified no one of its presence. It remained there until sometime during the evening. Between 10 minutes of 12 o’clock midnight and 1 a.m. two Kearney police officers in a cruiser stopped to investigate the truck. The unlighted truck was parked facing north on the east side of the roadway. The cruiser was parked on the west side of the street- approximately two car lengths north of the front-of the northbound truck. The southbound cruiser lights were on low beam and there was ample room [671]*671for vehicular traffic to pass between the truck and the cruiser from either direction. The officers finished checking the truck and at that time saw the plaintiff’s car coming over the south end of a bridge about 1,800 feet or 6 city blocks south of the location of the truck. One of the officers testified that, recognizing the danger, he took a two-cell flashlight, equipped with a red tone and ran down the road, swinging the flashlight horizontally so both a red and a white light showed, for the purpose of stopping the plaintiff. He reached a point about a block south of the parked truck in the plaintiff’s lane of travel. He estimated the speed of the plaintiff’s car at 50 to 55 miles per hour; that there was no decrease in speed of the plaintiff’s car from the time it crossed the bridge; and that the car never varied in its path until the impact. The plaintiff admitted seeing lights on the road to the north when he came over the bridge. He did not know whether they were on bright beam but testified that they blinded him. He never saw the officer or the flashlight or heard any verbal warning. He never reduced his speed, never saw the parked truck, and looked to the right side of the road to avoid looking at the bright lights. He realized the car with the bright lights was stationary when he was about 4 blocks from it.

The trial court submitted the issues of negligence and contributory negligence to the jury. The jury resolved these issues in favor of the plaintiff. The difficulty of the plaintiff’s position arises from this fact. The plaintiff assigns as error and argues error in instructions Nos. 2, 3, 6, and 16, all relating to the issues of liability. Neither in the plaintiff’s assignments of error nor in his argument in his brief does he assert or argue the insufficiency or inadequacy of the jury verdict on damages, nor assert nor argue that the verdict is not supported by the evidence. The plaintiff recovered á substantial verdict in the sum of $25,000. The matter of the insufficiency or inadequacy of the verdict is not' [672]*672before us for judicial review and cannot be considered. It is elementary that consideration of a cause on appeal is limited to errors assigned and discussed. Revised Rules of the Supreme Court, 1971, Rule 8a 2(3); § 25-1919, R. R. S. 1943; United States Nat. Bank v. Feenan, 182 Neb. 524, 156 N. W. 2d 29. It is further apparent, in light of the amount of the recovery in this case in the sum of $25,000, together with the failure of plaintiff to assert in any fashion by assignment of error or argument in his brief any inadequacy of the verdict, that our consideration of the case does not come within the exception of a plain error appearing in the record. Points not covered by any assignment of error will not be considered by this court. Cook v. Lowe, 180 Neb. 39, 141 N. W. 2d 430. It is not the duty of a reviewing court to search the record for the purpose of ascertaining if there is prejudicial error; every reasonable presumption will be indulged in favor of the correctness of the judgment that is entered; and any ruling alleged to be prejudicially erroneous must be specifically pointed out. Kasparek v. May, 182 Neb. 582, 156 N. W. 2d 144. These rules follow and are consistent with the fundamental law that a judgment will not be reversed unless prejudicial error affirmatively appears from the record. It is incumbent upon the party appealing from the judgment to show prejudicial error to entitle it to reversal. Workman v. Workman, 174 Neb. 471, 118 N. W. 2d 764; Blair v. Klein, 176 Neb. 245, 125 N. W. 2d 669. The plaintiff contends that he is entitled to a directed verdict on the issue of liability. Again this contention must fail since, having prevailed, he does not assign or assert any error in the amount of the verdict. We have recently held that any alleged errors in instructions occurring in the course of a trial are irrelevant, if the jury arrived at a verdict consistent with a directed verdict that should have been granted. Van Ornum v. Moran, 186 Neb. 418, 183 N. W. 2d 759.

[673]*673Plaintiff alleges and assigns error in the admission of exhibit 57, being a map or diagram of the accident area. Again it is clear, under the authorities already set out in this opinion, that such error, if present, could not possibly be prejudicial to the plaintiff, inasmuch as the jury resolved the question of liability in the plaintiff’s favor.

The plaintiff assigns as error the failure of the trial court to give his requested instruction No. 11, which, in effect, directed the jury that it was proper for it to take into consideration the low purchasing power of the dollar. There are two answers to this assignment of error. In the first place, as we have pointed out, error is not assigned with reference to the amount of the verdict, nor is it asserted in argument that the verdict of the jury in the sum of $25,000' is in any way inadequate. It is true that the jury can consider such a factor in arriving at the amount of the verdict but this court has specifically held that it is not a proper subject for an instruction. Segebart v. Gregory, 160 Neb. 64, 69 N. W. 2d 315. There is no merit to this contention.

A much more serious question is presented by the defendants’ cross-appeal. The defendants contend, in substance, that the plaintiff does not come within the exceptions to the range of vision rule, and was guilty of contributory negligence as a matter of law, barring recovery, in failing to see and avoid collision with the parked garbage truck. They rely upon the basic statement of the rule in Buresh v. George, 149 Neb. 340, 31 N. W. 2d 106, in which we said that the driver of an automobile is legally obligated to keep such a lookout that he can see what is plainly visible before him and he cannot relieve himself of that duty. In conjunction therewith, he must so drive his automobile that when he sees the object he can stop in time to avoid it. The defendants argue that the court, in the application of this rule, must disregard the plaintiff’s testimony as to [674]*674the fact that his vision was blinded momentarily by the lights of the police cruiser.

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Bluebook (online)
204 N.W.2d 559, 189 Neb. 669, 1973 Neb. LEXIS 867, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcclellen-v-dobberstein-neb-1973.