Opinion
No. A-10-1063.
12-27-2011
DANA M. ADAMS, APPELLANT, v. LOGAN CONTRACTORS SUPPLY, INC., AND MATTHEW MELICHAR, APPELLEES.
Robert F. Bartle and Jeffry D. Patterson, of Bartle & Geier Law Firm, for appellant Gregory G. Barntsen and Marvin O. Kieckhafer, of Smith Peterson Law Firm, L.L.P., for appellees.
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
Appeal from the District Court for Douglas County: LEIGH ANN RETELSDORF, Judge. Affirmed.
Robert F. Bartle and Jeffry D. Patterson, of Bartle & Geier Law Firm, for appellant
Gregory G. Barntsen and Marvin O. Kieckhafer, of Smith Peterson Law Firm, L.L.P., for appellees.
INBODY, Chief Judge, and SIEVERS and PIRTLE, Judges.
SIEVERS, Judge.
Dana M. Adams appeals from a judgment on a jury verdict in the district court for Douglas County in favor of Logan Contractors Supply, Inc. (Logan Contractors) and Matthew Melichar on the issue of whether Melichar was negligent when, in the course of his employment with Logan Contractors, he collided with Adams' vehicle after it went out of control on Interstate 80 near Omaha, Nebraska. On appeal, Adams alleges various errors by the trial court, none of which we find meritorious. Accordingly, after our review, we affirm.
FACTUAL BACKGROUND
On the morning of December 8, 2005, Adams was driving her white Ford Explorer westbound on I-80 in the right traffic lane. Adams was followed in the right lane by a semi-truck (semi) driven by Michael Randolph, an over-the-road trucker. Melichar was traveling in the left lane, and Randolph's semi was ahead of him in the right lane. Melichar was driving a tractor-trailer owned by Logan Contractors, and he was in the course of his employment for Logan Contractors at that time.
Near the Interstate 680 interchange, Adams lost control of her vehicle. Adams' vehicle moved from the right lane of travel across the left lane, collided into the concrete barrier separating the eastbound and westbound traffic lanes on I-80, rebounded about halfway back into the left lane of westbound traffic, and came to a stop. Melichar, who was traveling west in the left lane at approximately 50 to 55 m.p.h., collided with Adams' vehicle. It is unclear why Adams lost control of her vehicle, because she has no recollection of the collision or of the events immediately beforehand.
Adams suffered serious injuries as a result of the accident. She sustained a head injury, a torn aorta, six broken ribs, several broken vertebrae, and fractures of both collarbones. Adams' head injury caused a loss of bloodflow to the back of her eyes, resulting in a permanent loss of vision. She was placed in a medically induced coma for 9 days so that her aorta could heal. Additionally, Adams required an implant for one of her vocal cords, as it was thought she sustained a nerve injury resulting in partial vocal cord paralysis.
PROCEDURAL HISTORY
Adams filed a complaint in the district court for Douglas County on June 25, 2008, in which she alleged that Melichar was negligent for (1) attempting a passing maneuver in conditions which resulted in him driving too fast under the circumstances, (2) following too closely to another vehicle, (3) failing to stop or slow his vehicle in such a manner as to avoid the traffic accident, (4) failing to maintain control of his vehicle, and (5) failing to yield the right-of-way. Adams alleged that Logan Contractors, as Melichar's employer and the owner of the vehicle he was driving at the time of the collision, was vicariously responsible for Melichar's alleged negligence. Adams sought judgment against Logan Contractors and Melichar for $402,000 in special damages, plus additional general damages allowed under Nebraska law.
In their answer, Melichar and Logan Contractors denied the material allegations in Adams' complaint. While Logan Contractors initially counterclaimed for damages to its equipment, the counterclaim was eventually dismissed without prejudice, and is not part of this appeal.
Melichar and Logan Contractors filed a pretrial motion in limine which, in pertinent part, sought to exclude the expected deposition testimony of Erick Stark, who arrived at the scene after the accident. This testimony was that if asked, Stark would say that he saw Randolph get out of his semi and yell at Melichar, "[Y]ou should have slowed down." The motion asserts that this is "clearly hearsay," is unreliable, and is inadmissible under the Nebraska Evidence Rules. The motion argues that such testimony should be excluded prior to trial because objections and rulings by the court at the time of trial would merely emphasize the matter and increase the prejudice. A hearing was held on the motion in limine and other pretrial matters on July 30, 2010. With respect to Adams' objection to the admission of Stark's testimony, the trial judge stated on the record, "I'm sustaining it at this point, but we can revisit that."
Trial occurred September 1 through 3, 2010. According to Melichar's trial testimony, the surface of I-80 was damp on the morning of the accident, but it was not icy. The Omaha police officer who completed the investigation report after the collision, Officer Shane Farrow, testified that it was a snowy day, and in his accident report, he marked the box "wet, icy, snow, slush, etc." for circumstances contributing to the accident. Photographs of the area of the collision depict moisture, slush, and snow on the roadway and shoulder of the road. Melichar testified that he was traveling 50 to 55 m.p.h. when he hit Adams. His testimony was that he felt it was safe to travel at that speed under the then-existing weather conditions.
Melichar testified that he first saw Adams' vehicle when she was directly in front of him, mere "seconds" before he hit her. He testified that he remembered seeing Randolph's semi in the right lane beforehand, but that he was not attempting to pass the semi. He testified that Randolph's semi kept him from seeing Adams' vehicle until she was in his lane. He testified that when he saw Adams' vehicle, it appeared to be standing still in the left lane, and that as soon as he saw it, he hit his brakes. He then ran into Adams' vehicle, after which he hit the center median and came to a stop. Melichar testified that once he came to a stop, he climbed out the back of his tractor-trailer and went to where Adams was located. She had been ejected from her vehicle and was lying on the ground with people surrounding her. Melichar testified that he remembered Randolph yelling at him, but that because he was in a state of shock, he had no recollection of what Randolph said or his tone.
There was testimony from an accident reconstruction expert, Tony Kavan, that the westbound lanes curved left at the accident site, such that Randolph's semi could not have obstructed Melichar's view of Adams' vehicle when she lost control. The photographs in evidence of I-80 at the accident site depict a curvature to the left of the westbound lanes. Kavan testified that the time it takes for a driver to perceive danger and then react to it is on average 1½ seconds. He testified that at 50 m.p.h., a vehicle is traveling 73.3 feet per second, and that at 55 m.p.h., a vehicle is traveling about 80 feet per second. Kavan responded affirmatively when asked on cross-examination whether Melichar would have traveled 120 feet before he would have been able to react to Adams' vehicle if he were traveling at 55 m.p.h. Depending on the trajectory of Adams' vehicle across the left lane, Kavan's testimony was that it was possible Melichar would not have had time to avoid the collision. The record is inconclusive regarding the distance between Melichar's vehicle and Adams' vehicle at any point before the collision, and the police report does not locate any skid marks.
Stark testified that he did not witness the accident. He had been traveling west on I-80 near the I-680 split. When he arrived at the accident scene, he pulled onto the right shoulder and stopped behind a semi that had pulled off the road to the right. Stark got out of his pickup to see if he could help. In an offer of proof outside the presence of the jury, Stark testified that he observed Randolph get out of the semi and yell, "You should have fucking slowed down!" to Melichar, who was on the opposite side of the roadway. Stark testified that Randolph appeared to be excited and upset when he yelled at Melichar. Importantly, we note that Randolph did not testify.
During Stark's testimony, Adams' counsel asked on direct examination whether Stark recalled anything Randolph said with respect to the way Melichar was driving leading up to the collision, "Just a yes or no." Stark replied, "Yes, I believe so." Adams' counsel then said, "And I will ask for you to wait for the Court's ruling for you to repeat to the jury what he said with respect to . . . Melichar's driving." At that point, opposing counsel, Gregory Barnsten, interposed an objection on relevancy and foundation, and asked to voir dire the witness. The court sustained the objection and gave Barnsten leave to voir dire Stark, and Adams' counsel also made inquiry of the witness. The following voir dire examination then took place:
BY MR. BARNSTEN:
Q. Mr. Stark, you didn't see the accident happen; right?
A. No, sir.
Q. When you pulled upon the scene, all of the vehicles were in place?
A. That's correct.
Q. And so you didn't observe what had gone on or the position of the vehicles at the time the collision took place, did you?
A. No, sir.
Q. You don't know what Mr. Randol[ph], who I believe, was the truck driver what he saw or didn't see?
A. No, sir.
MR. BARNSTEN: Renew my objection, relevancy and lack of foundation.
THE COURT: Sustained.
(Whereupon, the following proceeding was had in low tones at the bench.)
MR. PATTERSON: Can we inquire as to what is lacking?
THE COURT: I still think he's upset. That's a conclusion. I want to know what makes him think he's upset. Is he yelling, shaking, running? Is he -- and I'm also not certain if the statement is relevant. Is the statement, why didn't you slow down, he testified to, is that's his paraphrase. I don't think he's quoting is that Randol[ph]? Is that an opinion?
MR. PATTERSON: I don't think it's an opinion. It's he's asking a question, why didn't you slow down.
THE COURT: I just don't know that that's relevant. I don't think it tends to prove I'm not sure it's relevant. Lay some more foundation as he doesn't know this guy. How does he know he's upset? . . . And lay a little more foundation for me at the time -- I think well, I think we're there. I'm really concerned about those two things, he's upset and it's not relevant. What he had said already, there was yelling and profanity. What does it tend to prove?
MR. PATTERSON: The statement is excited.
THE COURT: What does his statement what does this statement, why didn't you slow down, tend to prove?
MR. PATTERSON: It shows that if you perceived losing control and didn't slow down --
THE COURT: But what does that tend to prove? What does that tend to prove[?] MR. PATTERSON: It proves he was going too fast under the circumstances existing, which is the issue of why it's certainly relevant.
THE COURT: I'm going to sustain that. I don't think it is relevant. Because right now, all of the evidence you have in is that he was behind him.
The foundational examination continued for a brief period longer, and the trial judge continued to sustain the objection to Stark's testimony. After Adams' offer of proof, the trial judge clarified her ruling on the above-mentioned objection to Stark's testimony, stating:
And I just want to articulate for the record, in terms of excited utterance, it's the Court's feeling on the offer of proof, and I think I articulated this, but I wanted to make sure it's clear, although the plaintiff may have laid foundation for that to be an excited utterance, the Court believes that it was not. And I believe I identified that after asking counsel for the purpose it was to be admitted which was basically it was the opinion of Mr. Randol[ph] as a lay witness that the defendant, Mr. Melichar, was going too fast. And the Court believes that as a lay opinion under those circumstances, it wasn't relevant. There was not sufficient foundation of the witnesses['] personal knowledge, nor was there sufficient foundation that could lead the Court to conclude his conclusion was rationally based on his perception of the incident, because we don't know whether he, in fact, observed the actual collision. There's at least some evidence to suggest it occurred behind him. And, I guess, based on the fact we cannot know if he observed the collision or the speed of the defendant, it would not be admissible as an opinion of a lay witness. The Court finds that it wouldn't be clear to the understanding of any of the issues. So, therefore, it's not admissible.
At the close of Adams' evidence, Adams' counsel made an oral motion to amend her complaint to allege that Melichar violated the range of vision rule, that he failed to see things that would have been perceived by a reasonably careful driver in the same situation, and that he failed to operate his vehicle reasonably carefully considering the weather conditions on the road and the presence of other vehicles. Opposing counsel resisted that motion, arguing that all of the proof that had come forth was known leading up to the pretrial conference. The court reserved ruling on the motion. The next morning, prior to the jury instruction conference which will be discussed below, the court overruled Adams' motion to amend without elaboration.
At the close of all the evidence, Adams moved for a directed verdict as to Melichar's negligence. Specifically, Adams' counsel argued that Melichar violated the range of vision rule as a matter of law. Adams' counsel asserted that Kavan, the accident reconstruction expert, testified that Melichar had an unobstructed view of the road ahead of him and that thus, he failed to observe what was plainly obvious. "It is not a logical inference that Adams was invisible as she crossed the left lane, contacted the median, and came back into the left lane," Adams' counsel asserted. The court overruled the motion stating that there was an issue of fact for the jury as to what Melichar could or could not see immediately before the collision. The court ordered that the issue would be submitted to the jury. We note that the court found that the issue of Adams' contributory negligence would not be submitted to the jury due to a lack of proof.
A jury instruction conference was held on September 3, 2010. At the conference, Adams' counsel submitted requested jury instruction No. 3, which the court denied. Adams' requested jury instruction No. 3 differs from the jury instruction actually given, jury instruction No. 2, mainly because it contains a section which states that the court has determined as a matter of law that certain facts exist, "and you must accept them as true." Those facts are that (1) the cause of Adams losing control of her vehicle was not her own negligence, (2) Adams was injured in the collision with the vehicle Melichar was driving, and (3) there was no evidence that Adams was injured in the initial collision with the median barrier before colliding with the vehicle driven by Melichar. In denying the requested instruction, the court found that not submitting the issue of Adams' negligence to the jury was sufficient with respect to fact number one listed in the proposed instruction. As for facts two and three, the court found that those were issues for the jury.
After less than an hour of deliberations, the jury unanimously found in favor of Melichar. The court accepted the jury's verdict and entered the judgment accordingly. Adams now timely appeals.
ASSIGNMENTS OF ERROR
Adams alleges that the trial court erred in (1) sustaining the objection to Stark's testimony regarding Randolph's statement to Melichar, (2) overruling her motion for directed verdict on the issue of Melichar's negligence, (3) refusing to allow her to amend her complaint at the close of evidence, and (4) failing to instruct the jury consistent with her proposed jury instruction No. 3.
STANDARD OF REVIEW
A jury verdict will not be disturbed on appeal unless it is so clearly against the weight and reasonableness of the evidence and so disproportionate as to indicate that it was the result of passion, prejudice, mistake, or some means not apparent in the record, or that the jury disregarded the evidence or rules of law. Mahoney v. Nebraska Methodist Hosp., 251 Neb. 841, 560 N.W.2d 451 (1997). Other standards of review applicable to Adams' specific assignments of error will be set forth in the analysis section immediately below.
ANALYSIS
Was Objection to Stark's Testimony Properly Sustained?
Adams argues that the trial court should have overruled the objection to Stark's testimony regarding what he heard Randolph say to Melichar after the collision--"You should have fucking slowed down"--because that statement meets the requirements for the excited utterance exception to the hearsay rule and is relevant because it "make[s] it more probable for the jury that . . . Melichar could have slowed down and avoided the collision." Brief for appellant at 16. She claims the court's failure to overrule the objection amounts to prejudicial error.
In proceedings where the Nebraska Evidence Rules apply, the admissibility of evidence is controlled by the Nebraska Evidence Rules; judicial discretion is involved only when the rules make discretion a factor in determining admissibility. State v. Hembertt, 269 Neb. 840, 696 N.W.2d 473 (2005). A statement relating to a startling event or condition, an excited utterance, made while the declarant was under the stress of excitement caused by the event or condition is not excluded by the hearsay rule. Neb. Rev. Stat. § 27-803(1) (Reissue 2008). For a statement to qualify as an excited utterance, the following criteria must be met: (1) there must have been a startling event, (2) the statement must relate to the event, and (3) the statement must have been made by the declarant while under the stress of the event. State v. Hembertt, supra. We assume for purposes of discussion that Randolph's statement meets the requirements for an excited utterance, but conclude that the trial court properly refused to allow the jury to hear the testimony.
Because the exercise of judicial discretion is implicit in determinations of relevancy, an appellate court will not reverse the trial court's decision absent an abuse of discretion. Japp v. Papio-Missouri River NRD, 273 Neb. 779, 733 N.W.2d 551 (2007). An abuse of discretion in a ruling on the admissibility of evidence occurs when the trial judge's reasons or rulings are clearly untenable, unfairly depriving a litigant of a substantial right and denying just results in matters submitted for disposition. Worth v. Kolbeck, 273 Neb. 163, 728 N.W.2d 282 (2007).
Adams argues that "[t]he trial court's conclusion that . . . Randolph's statement must also [in addition to being an excited utterance] qualify as a lay opinion is not supported by any case law known to [Adams]." Brief for appellant at 13. As we quoted above, after Adams' counsel's offer of proof, the trial judge said "the plaintiff may have laid foundation for that to be an excited utterance," and as said above, we have assumed that it was indeed an excited utterance. However, the trial court additionally said:
And the Court believes that as a lay opinion under those circumstances, it wasn't relevant. There was not sufficient foundation of the witnesses['] personal knowledge, nor was there sufficient foundation that could lead the Court to conclude his conclusion was rationally based on his perception of the incident, because we don't know whether he, in fact, observed the actual collision. There's at least some evidence to suggest it occurred behind him.
Under Neb. Rev. Stat. § 27-602 (Reissue 2008), a lay witness may not testify to a matter unless evidence is introduced sufficient to support a finding that he or she has personal knowledge of the matter. "The foundational requirement of firsthand knowledge applies whether the declarant is in court and available for cross-examination or out of court and the statement is being offered under a hearsay exception." R. Collin Mangrum, Mangrum on Nebraska Evidence 384 (2010). See, also, State v. Jacob, 242 Neb. 176, 494 N.W.2d 109 (1993) (statements made under residual exception to hearsay rule inadmissible where there was no evidence declarant saw event in question). An excited utterance is, of course, offered as an exception to the hearsay rule.
In State v. Jacob, supra, the Supreme Court cited favorably to the following instructive passage from 1 McCormick on Evidence § 10 at 37-40 (John W. Strong 4th ed. 1992):
"The common law system of proof is exacting in its insistence upon the most reliable sources of information. This policy is apparent in the Opinion rule, the Hearsay rule and the Documentary Originals rule. One of the earliest and most pervasive manifestations of this attitude is the rule requiring that a witness who testifies to a fact which can be perceived by the senses must have had an opportunity to observe, and must have actually observed the fact. The same requirement, in general, is imposed upon declarations coming in under exceptions to the hearsay rule, that is, the declarant must so far as appears have had an opportunity to observe the fact declared.State v. Jacob, 242 Neb. at 197, 494 N.W.2d at 123.
"The burden of laying a foundation by showing that the witness had an adequate opportunity to observe is upon the party offering the testimony. . . .
"One who has no knowledge of a fact except what another has told him cannot, of course, satisfy the present requirement of knowledge from observation."
Here, the trial judge ruled that there was insufficient foundation that Randolph's opinion, as overheard by Stark, that Melichar should have "slowed down" was rationally based on Randolph's perception of the incident. The court stated in this regard, "[W]e don't know whether he, in fact, observed the actual collision. There's at least some evidence to suggest it occurred behind him." Accordingly, the court's implicit conclusion is that Randolph's statement to Melichar would not be admissible as a lay opinion under § 27-602 due to a lack of evidence that Randolph had personal knowledge of the accident. The court also appears to have concluded that the statement was irrelevant because, without the required foundation for a lay witness, it does not tend to make the purpose for which it was offered--that Melichar was going too fast--any more or less likely.
Even if the criteria for the excited utterance exception to the hearsay rule were met, we agree that there was insufficient foundation that Randolph actually saw the collision so as to give him a rational basis for what is obviously a lay opinion. Randolph did not testify, and the only evidence that he actually witnessed the collision is the circumstantial possibility that, because Adams was driving in front of him prior to the accident, he saw the collision. And, equally important, that he made the observations required to render a lay opinion concerning Melichar's speed immediately before impact. Additionally, as the trial court pointed out, there was evidence that the accident occurred behind Randolph's semi.
Hence, we agree with the trial court that there was insufficient foundation laid to admit Stark's testimony, even if such was an excited utterance, of Randolph's lay opinion of Melichar's speed. And it naturally follows that a lay opinion without the requisite foundation is irrelevant because it does not tend to prove the proposition it is offered to prove. This assignment of error is therefore meritless.
Should Motion for Directed Verdict Have Been Sustained?
Adams next asserts that the trial court erred in overruling her motion for directed verdict because Melichar was negligent as a matter of law "based solely on his testimony." Brief for appellant at 16. At trial, Adams' counsel argued in support of the motion that Melichar violated the range of vision rule. Her claim on appeal is essentially that there is no reasonable justification for Melichar's not seeing Adams' vehicle until the moment right before he hit it, except that he was not paying attention. Thus, she contends, her motion for directed verdict should have been granted.
With regard to the overruling of a motion for a directed verdict made at the close of all the evidence, appellate review is controlled by the rule that a directed verdict is proper only where reasonable minds can draw but one conclusion from the evidence, where an issue should be decided as a matter of law. Gagne v. Severa, 259 Neb. 884, 612 N.W.2d 500 (2000). In reviewing the trial court's action, an appellate court must treat a motion for directed verdict as an admission of truth of all competent evidence submitted on behalf of the party against whom the motion is directed; such being the case, the party against whom the motion is lodged is entitled to have every controverted fact resolved in its favor and to have the benefit of every inference which can reasonably be deduced from the evidence. Floyd v. Worobec, 248 Neb. 605, 537 N.W.2d 512 (1995).
The range of vision rule provides that negligence generally arises as a matter of law if one operates a motor vehicle on a public street or highway and, on account of the manner of such operation, is unable to stop the vehicle or turn it aside without colliding with an object or obstruction on the street or highway within the operator's range of vision. McFadden v. Winters & Merchant, Inc., 8 Neb. App. 870, 603 N.W.2d 31 (1999). The range of vision rule is applicable, notwithstanding that a motorist's vision is impaired by atmospheric or weather conditions, such as falling or blowing snow, rain, mist, or fog; such factors are conditions and not intervening causes, and require drivers to exercise a degree of care commensurate with the attendant circumstances. See id. Strict application of the range of vision rule as a matter of law is inappropriate where a reasonable dispute exists on the question of whether the operator of a vehicle exercised the requisite care and prudence under the circumstances. Stinson v. City of Lincoln, 9 Neb. App. 642, 617 N.W.2d 456 (2000).
Upon overruling Adams' motion for directed verdict at the close of evidence, the trial court said that there was an issue of fact as to what Melichar could or could not see immediately before the collision. Melichar's testimony was that his view of Adams' vehicle was obstructed by Randolph's semi, which was behind Adams' vehicle and ahead of Melichar's tractor-trailer. There was also testimony from the accident reconstruction expert, Kavan, using the relative positions of the vehicles pre-collision as well as the direction that the roadway curved, that arguably disputed Melichar's testimony that he could not see Adams' vehicle in time to avoid the collision. Clearly, a dispute of fact existed on that question and, ultimately, on the issue of whether Melichar exercised the requisite care and prudence under the circumstances.
However, because our standard of review requires us to resolve every controverted fact in Melichar's favor and to give him the benefit of every reasonable inference deducible from the evidence, we assume that he could not possibly see Adams until she was immediately in front of him and that he did not have sufficient time to swerve or brake to avoid her. Consequently, there is no merit to Adams' argument that the trial court erred in overruling her motion for directed verdict. Whether Melichar violated the range of vision rule by failing to exercise the requisite care and prudence under the circumstances was clearly an issue of fact for the jury, and it was proper for the trial court to refuse to resolve that issue as a matter of law. We find no merit to this claim.
Did Trial Court Err by Refusing to Allow Adams to Amend Her Complaint and by Rejecting Her Requested Jury Instruction?
Adams' third and fourth assignments of error are intertwined, and we discuss them together. In the context of Adams' oral motion to amend, which she asserted at the close of her evidence, Adams' counsel specifically asked to amend the complaint to include allegations that Melichar (1) violated the range of vision rule, (2) failed to see things that would have been perceived by a reasonably careful driver in the same situation, and (3) failed to operate his vehicle reasonably carefully considering the weather conditions and the presence of other vehicles. Permission to amend a pleading is addressed to the discretion of the trial court, and an appellate court will not disturb the trial court's decision absent an abuse of discretion. Roos v. KFS BD, Inc., 280 Neb. 930, 799 N.W.2d 43 (2010).
In her brief, Adams does not specifically argue that the trial court's failure to grant her motion to amend was an abuse of its discretion. Rather, she claims that the three issues she sought to add to the complaint, listed above, were tried by express or implied consent and that thus, they "'shall be treated in all respects as if they had been raised in the pleadings.'" Brief for appellant at 20, quoting Neb. Ct. R. Pldg. § 6-1115(b). Accordingly, we read her contention to be that, pursuant to § 6-1115(b), the jury instructions should have been drafted to reflect those additional issues. Adams' proposed jury instruction No. 3, which she claims the court should have used, contains these issues. And the court did instruct the jury that one of Adams' claims was that Melichar was negligent in failing to stop or slow his vehicle in such a manner as to avoid the collision. Thus, whether expressly pleaded or not, the issue was submitted to the jury and no error is present on this basis.
Additionally, Adams asserts in her brief that the court's decision not to submit the issue of Adams' contributory negligence to the jury is the equivalent of directing a verdict in Adams' favor on that issue. She argues that the jury instructions should have clarified the court's finding that Adams' negligence was not the cause of her losing control of her vehicle. Her brief recites, "Without a specific instruction that . . . Adams was not negligent, the trial court assisted defendants with their quest to confuse the jury about what was, and was not, the negligent act that caused the collision." Brief for appellant at 22. She implicitly argues that she was prejudiced by the court's refusal to accept her requested jury instruction No. 3 instead of the jury instruction actually used--jury instruction No. 2.
Whether a jury instruction is correct is a question of law, which an appellate court independently decides. Gary's Implement v. Bridgeport Tractor Parts, 281 Neb. 281, 799 N.W.2d 249 (2011). To establish reversible error from a court's failure to give a requested jury instruction, an appellant has the burden to show that (1) the tendered instruction is a correct statement of the law, (2) the tendered instruction was warranted by the evidence, and (3) the appellant was prejudiced by the court's failure to give the requested instruction. Sturzenegger v. Father Flanagan's Boys' Home, 276 Neb. 327, 754 N.W.2d 406 (2008). All the jury instructions must be read together, and if, taken as a whole, they correctly state the law, are not misleading, and adequately cover the issues supported by the pleadings and the evidence, there is no prejudicial error necessitating a reversal. Kent v. Crocker, 252 Neb. 462, 562 N.W.2d 833 (1997). It is not error for the court to refuse to give a requested jury instruction if the substance of the requested instruction is contained in those instructions actually given. Id.
Jury instruction No. 2, which was given to the jurors in this case, relates that Adams alleges Melichar was negligent in one or more of the following ways: (1) driving too fast for the circumstances then existing, (2) following too closely to another vehicle, and (3) failing to stop or slow his vehicle in such a manner as to avoid said motor vehicle accident. Jury instruction No. 6, which was also given to the jurors in this case, recites:
Drivers are negligent if they do something a reasonably careful driver in the same situation would not have done or fail to do something a reasonably careful driver in the same situation would have done.We agree with Melichar and Logan Contractors that when the jury instructions are considered as a whole, in particular instructions Nos. 2 and 6, it is clear that the substance of Adams' requested instruction No. 3 is contained therein. There is no merit to Adams' claim to the contrary.
For example, drivers are negligent if they fail to see or hear those things that would have been seen or heard by a reasonably careful driver in the same situation. They are also negligent if they fail to keep their vehicles under such control as a reasonably careful driver would have, in the same situation.
Reasonably careful drivers take into consideration such facts as their own speed, the condition of their vehicles, the condition of the road, the presence of (snow, ice, slush, dampness, et cetera), the presence of other vehicles, and any other factors that affect driving conditions.
Drivers must use reasonable care even when they have the right of way.
As for Adams' contention that the court should have provided a specific instruction that Adams' contributory negligence was not before the jury, the court found that its refusal to submit that issue to the jury was sufficient. However, given the law applicable to a driver's duty to maintain proper control, we have serious doubts that the trial court's apparent conclusion that, as a matter of law, Adams was not contributorily negligent was correct. See Huntwork v. Voss, 247 Neb. 184, 525 N.W.2d 632 (1995) (motorist is required to maintain reasonable control of vehicle commensurate with road conditions then and there existing at time of occurrence). Thus, under the applicable law, and a record which fails to reveal a nonnegligent cause of sudden loss of control such as a blown out tire or a seizure, it is difficult to see how the court could properly conclude that Adams was not negligent in losing control. But, even if such determination was error, it was to Adams' benefit--although there is no cross-appeal on this issue. We note that Adams' counsel remarked on the issue during closing arguments, stating, "As you heard in the closing arguments, there is no contribut[ory] negligence found. You will not have that issue before you because the Court ruled there's no evidence of contributory negligence on behalf of . . . Adams." Opposing counsel mentioned the issue again during his closing argument. Therefore, whether the court's ruling on contributory negligence was proper or not, it is clear that Adams' counsel made the jury aware of the court's findings, without objection from defense counsel. Thus, there was no error prejudicial to Adams in the court's instructions to the jury.
CONCLUSION
For the foregoing reasons, we find that the trial court properly (1) sustained the objection to Stark's testimony regarding Randolph's statement to Melichar, (2) overruled Adams' motion for directed verdict on the issue of Melichar's negligence, (3) refused to allow Adams to amend her complaint, and (4) declined to instruct the jury consistent with Adams' proposed jury instruction No. 3. Accordingly, we affirm the judgment of the trial court in all respects.
AFFIRMED.