Suhr v. Lindell

277 N.W. 381, 133 Neb. 856, 1938 Neb. LEXIS 242

• Court: Nebraska Supreme Court
• Decided: January 27, 1938
• Docket: No. 30152
• Status: Published

Opinions

Messmore, J.

This is an appeal from the district court for Dodge county, wherein a jury awarded plaintiff damages on two causes of action: $6,000 on the first cause of action for pain and suffering endured by plaintiff’s husband, and $8,000 on the second cause of action for pecuniary damages for the benefit of plaintiff and her minor children.

. Plaintiff’s petition alleged certain damages growing out of an automobile accident, which occurred on June 2, 1936, on a highway in the suburbs of Fremont, Nebraska. The defendants’ answer denied negligence and pleaded specific acts of negligence on the part of Martin Suhr, the deceased. Plaintiff replied by a general denial.

Richard Groene, driver of defendant Lindell’s truck, which was an International two-ton truck, with dual wheels, licensed for full capacity, testified, in substance, as follows: He left West Point, Nebraska, about 6:30 p. m., collected some nine head of cattle, loaded them and came into Fremont on highway No. 8 from the north, and took U. S. highway No. 30 down to a place known as the Farris filling station, arriving there at 10:30 p. m., and remaining for about ten minutes; then proceeded east on No. 30 to Bell street, which is the new paving south of Fremont, 20 feet in width and apparently level for some distance. Groene then proceeded on his way south on Bell street. The dimmer lights on his truck were on, and he could see approximately 20 to 30 feet ahead.

Joe Sebek, driver of a truck, testified, in substance, that he and Joe R. Vesely arrived at the Farris filling station just as defendant Groene was leaving, and that they subsequently followed his truck within a range of 100 to 250 feet. The speed of both trucks was from 20 to 22 miles an hour. The Groene truck was proceeding on its right side of the highway and at all times remained on the right side. A Ford truck, driven by Martin Suhr, in the employ of a nursery company, was proceeding north on Bell street on his right side of the road. Sebek testified that he could see the lights of the Ford truck a block or two away before the accident occurred, and that, just as it .was passing Groene’s truck, “he (Suhr) just turned right under it;” “went in under his (Groene’s) truck and come out and went behind” the Groene truck, and stopped on the west side of the highway between the Groene truck and the Sebek truck; that Suhr “had his arm pretty near gone;” that Suhr said “his arm was gone;” that his arm was not hanging out of the door of the Ford truck, and the window of the Ford truck was open; the left front tire was blown out at the time of the accident, and the lights on the Groene truck, both front and rear, were on; that the Groene truck at no time swayed in the road.

The witness Vesely, who was riding on the right side of Sebek, testified, in substance, that the Ford truck hit the Groene truck and he heard the tire blow out; saw the “sparks fly from the pavement;” that after striking the Groene truck the Ford truck came to the right side of the road in front of the Sebek truck. Witness did not see the Ford truck until it was about 60 feet distant therefrom, and stated that the Groene truck remained on its side of the road at all times. On cross-examination both Sebek and Vesely testified that they saw the lights of the Ford truck turn sharply to the left into the Groene truck. They made a statement to plaintiff’s counsel, which is substantially the story told by them at the trial, with the exception that Sebek denied that the following was a part of the statement which he signed: All of a sudden the small truck hit into the International truck “right at the front corner of the rack;” “I didn’t notice the lights on the International before or after the accident.” There also appears in the statement referred to the following: The driver of the International truck said: “It came so fast he didn’t know how it happened.”

Defendant Groene testified further that he first saw the lights of the Ford truck three or four blocks distant; that the Ford truck came down on its own side of the road in a straight line, and he could see it approaching 30 to 40 feet ahead of his truck; that the lights obscured his vision of the road; that the Ford truck seemed to switch right off into the left side of his truck “right under the wheels,” “right under the box.” He also testified that the Ford truck went over to the east side of the paving 30 or 40 feet ahead of him. There is evidence that both trucks were moved after the accident to permit traffic to pass. There is also evidence of pieces of glass having been swept from the east side of the highway. This glass was obviously from the lamp of the Ford truck. The evidence further discloses that immediately after the accident an ambulance arrived; Martin Suhr was taken to the operating room of a hospital in Fremont, where there were present Doctor Fasser, Paul K. Peterson, and his wife, Edith, a trained nurse, who managed the hospital.

The physical facts show that the rack of the Groene truck was about 7 feet, 9 inches, in width, the exact measurements not disclosed by the record; that the truck was approximately 13 feet in length; that the body of the truck extended beyond the cab on each side. The distance from the bottom of the rack to the ground is not disclosed. The front of the rack apparently was not struck by the Ford truck, but on the second stanchion, about the width of two boards up, appeared a chipped place. There is a dispute as to whether there were any marks on the first stanchion of the truck. There is some evidence that a piece had been gouged out of the first stanchion on the left side of the truck. There were pieces of flesh and clothing caught on the rack, back about two-thirds of the way from the front, and a little piece of skin and cloth had fallen to the floor of the rack. There were marks on the side of the rack, underneath the rack, and on the outside of the wheels. The back part of the International truck was lower than the front part. The Ford truck showed the left fender smashed, the rear-vision mirror bent back in towards the cab, the left front light broken, the metal water trough above the door was bent flat against the body of the truck, and the body was dented, both in front and behind, above the door. The rear left fender of the truck was dented, the door was closed, and the window on the left side was down.

Appellants contend that the physical facts demonstrate that the Ford truck turned into the defendants’ truck; while appellee contends that the driver of defendants’ truck was on the wrong side of the highway; that the front of the body of defendants’ truck was higher than the rear and went over the left front fender of the Ford truck; that the front corner of defendants’ truck rack hit the upper hinge of the cab door of the Ford truck; that the front side of defendants’ truck hit the side of the Ford truck, thus drawing the front of that truck slightly to the left; that its left wheels went on by and under the edge of defendants’ truck; in other words, the trucks sideswiped.

Appellants contend that the court erred in not sustaining defendants’ motion for a directed verdict at the close of the testimony, citing Hessler v. Bellamy, 128 Neb. 571, 259 N. W. 514, wherein this court held: “If the evidence essential to a recovery by plaintiff is clearly disproved by the physical facts and conditions, the trial court should direct a verdict against him.” Dodds v. Omaha & C. B. Street R. Co., 104 Neb. 692, 178 N. W. 258, and Sippel v. Missouri P. R. Co., 102 Neb. 597, 168 N. W. 356, holding to like effect are cited.

Appellants cite Bentley v. Hoagland, 94 Neb. 442, 143 N. W. 465, wherein this court held: “Where the verdict of a jury is clearly against the weight and reasonableness of the evidence, it will be set "aside and a new trial granted.” They also cite Calnon v. Fidelity Phenix Fire Ins. Co., 114 Neb. 53, 205 N. W. 942, holding to like effect.

. From the physical facts in this case, the jury could determine either that the Ford truck struck defendants’ truck, or that defendants’ truck and the Ford truck sideswiped.

Appellants cite Anderson v. Altschuler, 125 Neb. 853, 252 N. W. 310, wherein we held: “Where, in an action for damages, the evidence discloses certain physical facts which stand undisputed, and where the facts in evidence show beyond reasonable dispute that plaintiff’s negligence was more than slight as compared with the negligence of defendant, and to such extent that no reasonable mind can believe that such contributory negligence on the part of the party injured was slight and the negligence, if any, of the defendant gross in comparison therewith, in such a case the jury should be instructed to find for the defendant.”

The physical facts in the instant case do not meet the rule as announced in the above case, for the reason that the physical facts do not disclose or show beyond reasonable dispute that Martin Suhr’s negligence was more than slight as compared with the negligence of defendant Groene. The defendants’ witnesses, Sebek and Vesely, saw the Ford truck approaching, testified to its striking the Groene truck, but predicated their testimony on seeing the lights of the Ford truck suddenly veer to the left. The accident occurred in the nighttime. Defendant Groene’s testimony that his vision was obscured- immediately before the accident, and his statement to Sebek that “he could not do anything but let him hit him, said it came so fast he didn’t know how it happened,” and the fact that the Ford truck was traveling at the rate of 15 miles an hour, would leave the question as to the degree of negligence in dispute.

The appellants further contend that the court erred in not submitting to the jury the issue of contributory negligence on the part of Martin Suhr in driving with his arm out of the truck window. There is no evidence in the record that would warrant the trial court in giving such an instruction.

“It is proper practice for court to refuse to submit to jury defense not supported by evidence.” Sterns v. Hellerich, 130 Neb. 251, 264 N. W. 677; followed in Kovar v. Beckius, ante, p. 487, 275 N. W. 670.

Appellants criticize instruction No. 6, given by the trial court, wherein the court used the word “cautious,” together with the word “prudent,” in defining negligence. “Cautious” is synonymous with “prudent.” It may have been superfluous in the instruction, but its use was not error.

Instruction No. 8 is also criticized for the reason that it left the impression with the jury that they could consider any and all acts of negligence on the part of Groene at the scene of the accident. It is contended that the in-struction throws the whole matter of negligence open to wild conjecture, and in the use of the words, “in any wise negligent,” the jury could speculate without limit on the negligence of Groene, if any. In reading, in connection with instruction No. 8, instruction No. 9 on proximate cause, wherein the court did limit the negligence of Groene, if any, to the propositions of negligence as set out in instruction No. 1, and in reading instruction No. 1, which is also criticized, we conclude that instruction No. 1 sets out specifically the acts of negligence, if any, of which Groene would be guilty, and eliminates, for lack of evidence, from the jury’s consideration several acts of negligence pleaded in the petition.

“Instructions given to a jury must be construed together, and if, when considered as a whole, they properly state the law, it is sufficient.” Clausen v. Johnson, 124 Neb. 280, 246 N. W. 458; followed in Kovar v. Beckius, supra.

Appellants contend that certain statements made by Martin Suhr after the accident were improperly admitted and were not part of the res gestee. In this connection it would be well to ascertain the physical condition of Suhr immediately after the accident. His left arm was practically torn off; he was suffering from loss of blood and shock and was cold. All of his muscles and soft parts of his left arm were torn in the region of the elbow, and his arm from the elbow down was attached to the upper arm simply by a few shreds of muscle. The bones above the elbow were crushed in small pieces, and the skin was torn from the arm up above the shoulder. He had a cut about three inches long on his forehead and another cut about two inches long on his chin. He was given a hypodermic of morphine to ease his pain. There was clothing ground into his torn arm, and he was given glucose of normal salt under his skin as a stimulant.

Doctor Fasser testified that he asked Martin Suhr: “Slim, what happened to you?” and that, in response to this question, “He said that he had been struck by an automobile on the wrong side.” This statement was made about 10:45 p. m. Paul K. Peterson understood the statement as follows: “He said it was over the black line in the center of the road. * * * Q. What did he say in reference to the black line? A. All that I could remember was that he looked up and saw this car. It was on his side of the road over the black line over on his side of the road.” Edith Peterson, who was present at the time the statement was made, recalled it as follows: “He said, T was hit, crowded off by a car on the wrong side of the road.’ ”

“To bring acts and declarations within the doctrine of res gestse, they must be connected with, and grow out of, the act or transaction which is the subject-matter of inquiry so as to form one continuous transaction, and must, in some way, illustrate, elucidate, qualify, or characterize the act, and, in a legal sense, be a part of it.” 10 R. C. L. 977, sec. 160.

“A statement to be admissible as a part of the res gestse must have been spontaneous and impulsive, and made at a time and under such circumstances as to induce the belief that it was not the result of reflection and premeditation.” Tongue v. Perrigo, 130 Neb. 564, 265 N. W. 737.

“The consensus of the authorities seems to be that a declaration to be a part of the res gestse need not be coincident in point of time with the main fact proved. It is enough that the two are so clearly connected that the declaration can, in the ordinary course of affairs, be said to be a spontaneous explanation of the real cause. The declaration is then a verbal act, and may well be said to be a part of the main fact or transaction. Again, if the subsequent declaration and the main fact at issue taken together form a continuous transaction, then the declaration is admissible.” Missouri P. R. Co. v. Baier, 37 Neb. 235, 55 N. W. 913.

“Since this utterance is made under the immediate and uncontrolled domination of the senses, and during the brief period when considerations of self-interest could not have been brought fully to bear by reasoned reflection, the utterance may be taken as particularly trustworthy (or, at least, as lacking the usual grounds of untrustworthiness), and thus as expressing the real tenor of the speaker’s belief as to the facts just observed by him; and may therefore be received as testimony to those facts.” 3 Wig-more, Evidence (2d ed.) 738, sec. 1747.

“ ‘The trial court must be permitted to exercise its discretion, very largely, in determining whether the declarations were made under such circumstances as to permit the inference that they were genuine expressions, and the jury must be left to determine whether or not such inference shall be drawn.’ Hewitt v. Eisenbart, 36 Neb. 794.” Ridenour v. Lewis, 121 Neb. 823, 238 N. W. 745.

Considering the evidence relative to the condition of Martin Suhr immediately after the accident and the short period of time elapsing before the statement was made by him, as hereinbefore set out, we believe that the court properly admitted such evidence as part of the res gestee.

A short time subsequent to the making of the foregoing statement by Martin Suhr he made a statement to Earl Conrad, his employer and owner of the Ford truck damaged in the accident. Conrad testified as follows: “Q. Now you may state what Martin Suhr said there in your presence. A. I just spoke to him and said, ‘You had a pretty bad accident;’ and he said, ‘Yes; but Conrad it wasn’t my fault. They were clear over on my side and I couldn’t help it.’ ” This statement was admitted in evidence as part of the res gestse.

Obviously, the statement made by Martin Suhr to his employer, whose property had been damaged while he, Suhr, was driving, from its very nature, indicates that it was a statement made to his employer as to how the accident occurred and his reason why he was not to blame. We believe that this statement made by Martin Suhr to Earl Conrad was improperly admitted in evidence, and that its admission was prejudicial to defendants. There were also admitted in evidence certain statements made by Martin Suhr to different persons during the period he was in the hospital; his arm having been amputated at noon of the second day, and he having died on the third day, or approximately 36 hours after he had been taken to the hospital. These statements are as follows: “I will never live through this or get over this;” “I will never live through this, never;” and to Edith Peterson, who was present in his room almost hourly, he made such statements as “I will not live through this; I will never get over this and this is the end of me,” saying that he was “going to die.” Such statements of the declarant relating to his physical condition and his settled belief that he would not recover are not admissible in evidence as a part of the res gestse and constitute merely an opinion of the declarant.

The statements, as hereinbefore set out, develop only one thing: That the patient believed he would not get well, do not relate to the accident or its cause, and are not spontaneous but reflect what the patient believed in his mind as to his condition. We believe such statements were inadmissible and prejudicial.

For the reasons given, the judgment of the district court is reversed, and the cause remanded for a new trial.

Reversed.