Paro v. FARM AND RANCH FERTILIZER, INC.

499 N.W.2d 535, 243 Neb. 390, 1993 Neb. LEXIS 148
CourtNebraska Supreme Court
DecidedMay 7, 1993
DocketS-91-076
StatusPublished
Cited by34 cases

This text of 499 N.W.2d 535 (Paro v. FARM AND RANCH FERTILIZER, INC.) 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
Paro v. FARM AND RANCH FERTILIZER, INC., 499 N.W.2d 535, 243 Neb. 390, 1993 Neb. LEXIS 148 (Neb. 1993).

Opinions

Boslaugh, J.

This action arose out of a motor vehicle accident that occurred at about noon on December 22, 1987, at an intersection of county roads in Garden County, Nebraska.

The plaintiff, Richard Allen Paro, was driving his 1975 Chevrolet pickup truck in a southerly direction. The defendant Kerry W. Johnson was driving a 1975 Ford 21/2-ton truck owned by the defendant Farm & Ranch Fertilizer, Inc., in an easterly direction. The Farm & Ranch truck was loaded with fertilizer. Both roads were two-lane gravel roads, but the north-south road was protected by stop signs. It is undisputed that the Farm & Ranch truck did not stop at the stop sign before entering the intersection, but “rolled” through the intersection at about 5 miles per hour.

There is a hill north of the intersection, the crest of which is approximately 300 feet from the intersection. According to the plaintiff, when he reached the crest of the hill, he saw the Farm & Ranch truck approaching the intersection from the west. When the plaintiff was about 200 feet north of the intersection, it became apparent to him that the defendant Johnson was not going to stop at the stop sign, so the plaintiff applied his brakes in an effort to avoid the accident. At that time, the plaintiff was traveling at 45 or 50 miles per hour. The accident occurred when the front of the plaintiff’s truck collided with the left rear portion of the Farm & Ranch truck. As a result of the collision, the plaintiff’s truck was destroyed and the plaintiff sustained personal injuries to his leg, back, hands, and head. The plaintiff now has a 5-percent permanent impairment to his lower left leg.

The case was submitted to a jury, which returned a verdict for the plaintiff in the amount of $35,000. The defendants appeal and assign as error the trial court’s (1) allowing testimony of the plaintiff and his wife regarding loss of consortium after the accident but before their marriage; (2) overruling the defendants’ motion to permit note-taking by the jurors; (3) not admitting into evidence or allowing for impeachment purposes the “Claim for Benefits” form and other tendered portions of [393]*393Department of Labor records; (4) not permitting a Department of Labor employee to testify; (5) giving instruction No. 18, since it did not mention contributory or comparative negligence; (6) giving both instructions Nos. 18 and 6, since they were conflicting; (7) not setting aside the jury’s verdict, since it was excessive and not supported by sufficient evidence; (8) not allowing the testimony of lay witnesses regarding the speed of the plaintiff’s vehicle; (9) denying the defendants’ motion for sanctions, equitable relief, and taxation of costs for an earlier mistrial they claim was caused by the plaintiff; (10) failing to find the plaintiff guilty of contributory negligence; (11) overruling objections to counsel’s expressions in his closing argument of personal beliefs as to credibility of witnesses and asking the jurors “to put [themselves] or their families” in the plaintiff’s place; and (12) failing to grant the defendants’ motion for judgment notwithstanding the verdict or, in the alternative, a new trial.

The plaintiff cross-appeals and assigns as error the trial court’s denial of his motion for sanctions.

With respect to the defendants’ first assignment of error, the evidence is that the plaintiff and his present wife were not married at the time of the accident. The petition did not request damages for loss of consortium, and the trial court did not instruct the jury concerning loss of consortium. Furthermore, the plaintiff’s wife did not testify as to loss of consortium. On direct examination, the plaintiff’s wife testified as to the plaintiff’s condition following his injury, when his condition improved, and how long he was out of work.

The only objection by the defendants during her testimony was made after she was asked if she and her two boys depended upon the plaintiff prior to the accident for income and support. The plaintiff’s wife responded affirmatively, and the defendants’ objection was overruled.

The defendants were not prejudiced by this evidence, and because there was no request, no testimony, and no instruction concerning loss of consortium, the defendants’ assignment of error is without merit.

Relying on State v. Kipf, 234 Neb. 227, 450 N.W.2d 397 (1990), the defendants claim that the trial court erred in denying [394]*394their request that the jury be allowed to take notes. In State v. Kipf, this court held that jurors are permitted to take notes if the parties agree that the jurors may take notes and that such notes may be used during deliberations, but will be treated confidentially between the jurors and not preserved for review on appeal.

In the present case, since the parties did not agree as to the jurors’ taking notes, the trial court did not err in denying the defendants’ request.

The defendants’ next two assignments of error relate to the trial court’s refusal to admit into evidence a Claim for Benefits form from the Nebraska Department of Labor and other tendered Department of Labor documents as well as testimony by a Department of Labor employee. The defendants claim the exhibits and testimony were necessary to impeach the plaintiff’s prior testimony that he was unable to work prior to April 1988.

The defendants were permitted to use the Claim for Benefits-form during cross-examination of the plaintiff, but the trial court refused to admit it and the other Department of Labor records as well as testimony by its employee into evidence because their prejudicial effect was too great in light of their probative value.

Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, or needless presentation of cumulative evidence. Brown v. Farmers Mut. Ins. Co., 237 Neb. 855, 468 N.W.2d 105 (1991); Neb. Rev. Stat. § 27-403 (Reissue 1989). A trial court’s ruling concerning § 27-403 will not be disturbed on appeal unless there has been an abuse of discretion. Brown, supra.

Because the defendants were able to use the Claim for Benefits form during cross-examination of the plaintiff and because he admitted that he had stated to the Department of Labor that he was physically able to work since January 22, 1988, they were not prejudiced by the trial court’s decision to exclude the exhibits and testimony from an employee of the Department of Labor, and the trial court did not abuse its discretion in excluding the evidence.

The defendants’ next two assignments of error relate to the [395]*395trial court’s instructions Nos. 18 and 6. The defendants argue that instruction No. 18 is improper because it does not mention contributory or comparative negligence and, therefore, conflicts with instruction No. 6, which does instruct on contributory and comparative negligence.

The record shows that at the instruction conference, the defendants objected to instruction No. 6, but did not object to instruction No. 18. Failure to object to a jury instruction after it has been submitted to counsel for review precludes raising an objection on appeal absent plain error.

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Paro v. FARM AND RANCH FERTILIZER, INC.
499 N.W.2d 535 (Nebraska Supreme Court, 1993)

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Bluebook (online)
499 N.W.2d 535, 243 Neb. 390, 1993 Neb. LEXIS 148, Counsel Stack Legal Research, https://law.counselstack.com/opinion/paro-v-farm-and-ranch-fertilizer-inc-neb-1993.