NE Code § 25-21,185 (2021)
2021 Nebraska Revised Statutes|Chapter 25 - Courts; Civil Procedure|25-21,185 - Actions accruing before February 8, 1992, for injuries to person or property; contributory negligence; comparative negligence.

25-21,185.  Actions accruing before February 8, 1992, for injuries to person or property; contributory negligence; comparative negligence.In all actions accruing before February 8, 1992, brought to recover damages for injuries to a person or to property caused by the negligence or act or omission giving rise to strict liability in tort of another, the fact that the plaintiff may have been guilty of contributory negligence shall not bar a recovery when the contributory negligence of the plaintiff was slight and the negligence or act or omission giving rise to strict liability in tort of the defendant was gross in comparison, but the contributory negligence of the plaintiff shall be considered by the jury in the mitigation of damages in proportion to the amount of contributory negligence attributable to the plaintiff, and all questions of negligence or act or omission giving rise to strict liability in tort and contributory negligence shall be for the jury.Source   Laws 1913, c. 124, § 1, p. 311;   R.S.1913, § 7892;   C.S.1922, § 8834;   C.S.1929, § 20-1151;   R.S.1943, § 25-1151;   Laws 1978, LB 665, § 6;   R.S.1943, (1979), § 25-1151;   Laws 1992, LB 262, § 9.  Annotations  1. Slight negligence of plaintiff 2. Gross negligence of defendant 3. Comparison 4. Miscellaneous 1. Slight negligence of plaintiff Negligence of plaintiff must be compared with that of defendant to determine whether negligence is slight or gross. Brackman v. Brackman, 169 Neb. 650, 100 N.W.2d 774 (1960). Where plaintiff's negligence was more than slight in comparison with the negligence of the defendant, directed verdict was proper. Kirchner v. Gast, 169 Neb. 404, 100 N.W.2d 65 (1959); Rogers v. Sheperd, 159 Neb. 292, 66 N.W.2d 815 (1954); Meyer v. Platte Valley Construction Co., 147 Neb. 860, 25 N.W.2d 412 (1946); Western Contracting Corp. v. Odle, 331 F.2d 38 (8th Cir. 1964). Slight negligence does not defeat recovery if by comparison the negligence of defendant is gross. Fairchild v. Sorenson, 165 Neb. 667, 87 N.W.2d 235 (1957). Failure to use due care after becoming aware of an obstacle is more than slight negligence. Allen v. Kavanaugh, 160 Neb. 645, 71 N.W.2d 119 (1955). Instruction given under this statute was erroneous which directed jury that the amount that might be deducted on account of contributory negligence of plaintiff must necessarily not be any large percent of the total damages. Krepcik v. Interstate Transit Lines, 153 Neb. 98, 43 N.W.2d 609 (1950). Where there is no basis in the evidence for a finding of contributory negligence, it is error to instruct on the subject. Hartford Fire Ins. Co. v. County of Red Willow, 149 Neb. 10, 30 N.W.2d 51 (1947). Failure of jewelry salesman to inform hotel of contents of sample case containing jewelry or value thereof constituted contributory negligence of such degree as to bar recovery. Roger Wurmser, Inc. v. Interstate Hotel Co., 148 Neb. 660, 28 N.W.2d 405 (1947). Failure to instruct on the comparative negligence rule when the evidence discloses the contributory negligence of the plaintiff exceeds slight negligence is not prejudicial error. Shiman Bros. & Co. v. Nebraska National Hotel Co., 146 Neb. 47, 18 N.W.2d 551 (1945). When the plaintiff's negligence is more than slight as compared with that of the defendant, and is clearly the proximate cause of the accident, the court should direct a verdict for the defendant. Dickenson v. County of Cheyenne, 146 Neb. 36, 18 N.W.2d 559 (1945). One who suddenly moves from place of safety into the path of a moving vehicle, after seeing it approach, is guilty of more than slight negligence. Hughes v. Omaha & C. B. St. Ry. Co., 143 Neb. 47, 8 N.W.2d 509 (1943). Where pedestrian was struck by defendant's truck, evidence of intoxication of pedestrian was not of itself contributory negligence but was circumstance to be considered by jury in determining whether intoxication contributed to injury. Nichols v. Havlat, 142 Neb. 534, 7 N.W.2d 84 (1942). One injured while momentarily standing in a highway is not, because of that fact, guilty of contributory negligence as a matter of law. Grantham v. Watson Brothers Transportation Co., 142 Neb. 362, 6 N.W.2d 372 (1942). Anyone who voluntarily walks about in total darkness in a strange place, where no special circumstances require him to proceed, does so at his own risk and is guilty of more than slight negligence as a matter of law. Wetink v. Traphagen, 138 Neb. 41, 291 N.W. 884 (1940). Where evidence shows beyond reasonable dispute that plaintiff's negligence is more than slight as compared with defendant's negligence, it is proper for trial court to instruct jury to return verdict for defendant. Whittaker v. Hanifin, 138 Neb. 18, 291 N.W. 723 (1940); Doan v. Hoppe, 132 Neb. 641, 272 N.W. 763 (1937). Where a pedestrian suddenly steps from a place of safety into the path of a street car, his contributory negligence is more than slight as a matter of law. Travinsky v. Omaha & C. B. St. Ry. Co., 137 Neb. 168, 288 N.W. 512 (1939). Where an automobile driver parks his car parallel to the curb, gets out of his car on the left hand side, and is struck by another automobile while standing beside his car in a city street, he is not guilty of more than slight negligence as a matter of law. Brenning v. Remington, 136 Neb. 883, 287 N.W. 776 (1939). Where view at railroad crossing is obstructed, motorist who attempts to cross and fails to look or listen is guilty of such contributory negligence as will defeat recovery. Mundt v. Chicago, R. I. & P. R. R. Co., 136 Neb. 478, 286 N.W. 691 (1939). Where the driver of an automobile disregards a stop sign and drives out upon an arterial highway without stopping and collides with another automobile, he is guilty of more than slight negligence as a matter of law. Ritter v. Hering, 135 Neb. 1, 280 N.W. 231 (1938). One entering a darkened room on own premises where a trapdoor is liable to be open, without ascertaining whether the door is open or shut, is guilty of more than slight negligence as a matter of law. Gardner v. Metropolitan Utilities Dist., 134 Neb. 163, 278 N.W. 137 (1938). If evidence clearly shows that plaintiff is guilty of more than slight negligence which will defeat a recovery, it is proper to sustain motion for instructed verdict for defendant. McDonald v. Omaha & C. B. St. Ry. Co., 128 Neb. 17, 257 N.W. 489 (1934). Notwithstanding wording of statute, court may pass on sufficiency of evidence of contributory negligence as bar to recovery. Pinches v. Village of Dickens, 127 Neb. 239, 254 N.W. 877 (1934). Instruction permitting recovery unless plaintiff's intestate was guilty of gross negligence was erroneous. McDonald v. Wright, 125 Neb. 871, 252 N.W. 411 (1934). Comparative negligence rule precludes recovery by one who approaches railway crossing without precaution. Stanley v. Chicago, R. I. & P. Ry. Co., 113 Neb. 280, 202 N.W. 864 (1925). Where both parties are negligent in some degree, it is error to omit the word "slight" in describing the contributory negligence that shall bar the plaintiff from recovery. McMullen v. Nash Sales Co., 112 Neb. 371, 199 N.W. 721 (1924). Slight negligence of plaintiffs is no longer a defense but goes only in mitigation of damages. Holley v. Omaha & C. B. St. Ry. Co., 110 Neb. 541, 193 N.W. 710 (1923). Where there is some evidence of contributory negligence, failure to give instruction on comparative negligence is error. Mares v. Chaloupka, 110 Neb. 199, 192 N.W. 397 (1923). Where shown beyond reasonable dispute that plaintiff's negligence was more than slight in comparison with defendant's, action should be dismissed or verdict directed. Haffke v. Missouri Pac. R. R. Corp., 110 Neb. 125, 193 N.W. 257 (1923); Seiffert v. Hines, 108 Neb. 62, 187 N.W. 108 (1922); Frey v. Omaha & C. B. St. Ry. Co., 106 Neb. 333, 183 N.W. 567 (1921); Dodds v. Omaha & C. B. St. Ry. Co., 104 Neb. 692, 178 N.W. 258 (1920); Jensen v. Chicago, St. P., M. & O. R. Co., 12 F.2d 413 (8th Cir. 1926); Gordon Fireproof Warehouse & Van Co. v. Hines, 272 F. 604 (8th Cir. 1921); Marshall v. Hines, 271 F. 165 (8th Cir. 1921). Contributory negligence of plaintiff was more than slight as a matter of law and barred recovery. Sandberg v. Peter Kiewit Sons Co., 364 F.2d 206 (8th Cir. 1966). Negligence of one party is to be compared with that of another, and is not to be evaluated standing alone. United States v. Bohachevsky, 324 F.2d 120 (8th Cir. 1963). Negligence of contractor's employee was slight in comparison to negligence of railroad. Union Pac. Ry. Co. v. Blank, 167 F.2d 291 (8th Cir. 1948). Court must dismiss case where plaintiff's negligence is more than slight as compared with defendant's. Rogers v. Chicago, R. I. & P. Ry. Co., 39 F.2d 601 (8th Cir. 1930). 2. Gross negligence of defendant Whether or not an act or omission constitutes gross negligence is ascertainable by comparison with negligence of opposing party. Pierson v. Jensen, 150 Neb. 86, 33 N.W.2d 462 (1948). Omission to explain that plaintiff's contributory negligence, however slight, will defeat recovery in case defendant's negligence falls short of being gross in comparison, was reversible error. Mitchell v. Missouri Pac. R. R. Corp., 114 Neb. 72, 206 N.W. 12 (1925). There is no error in not instructing on comparative negligence, where defendant's negligence is not established. Lady v. Douglass, 105 Neb. 489, 181 N.W. 173 (1920). 3. Comparison In awarding damages under the provisions of this section, it is the jury's responsibility to comparatively measure the amount of negligence on defendant's part to the contributory negligence, if any, on plaintiff's part by considering all the evidence presented on the issue. Sanwick v. Jenson, 244 Neb. 607, 508 N.W.2d 267 (1993). Questions of contributory negligence shall be for the jury. Sierks v. Delk, 222 Neb. 360, 383 N.W.2d 778 (1986). If the evidence shows that plaintiff's conduct may be negligent and a proximate cause of the accident, the issue of contributory negligence must be submitted to the jury. Davis v. Phillips, 215 Neb. 184, 337 N.W.2d 754 (1983). In determining questions of slight and gross negligence, the process of comparison should measure the disparity between the quantum of the total negligence of defendant and the total negligence of the plaintiff. C. C. Natvig's Sons, Inc. v. Summers, 198 Neb. 741, 255 N.W.2d 272 (1977). The words slight and gross as employed herein are comparative terms, and the negligence of the plaintiff or defendant is not to be evaluated as slight, gross, or otherwise, standing alone. Niemeyer v. Tichota, 190 Neb. 775, 212 N.W.2d 557 (1973). The meaning of gross negligence under the comparative negligence rule is contrasted with its meaning under the guest passenger statute. Johnson v. Roueche, 188 Neb. 716, 199 N.W.2d 1 (1972). Under facts in the case, instruction concerning the comparative negligence statute was required. Sober v. Smith, 179 Neb. 74, 136 N.W.2d 372 (1965). Evidence was sufficient to take case to the jury under comparative negligence statute. Robins v. Sandoz, 177 Neb. 894, 131 N.W.2d 648 (1964). Requirements of instruction on comparative negligence rule stated. Darnell v. Panhandle Coop Assn., 175 Neb. 40, 120 N.W.2d 278 (1963). Instruction on comparative negligence was free from prejudicial error. Hiner v. Nelson, 174 Neb. 725, 119 N.W.2d 288 (1963). Failure to give instruction on comparative negligence was prejudicial error. Carlson v. Chambers, 173 Neb. 166, 112 N.W.2d 729 (1962); Baty v. Wolff, 162 Neb. 1, 74 N.W.2d 913 (1956). Instructions given properly stated the rule of comparative negligence. Pearson v. Schuler, 172 Neb. 353, 109 N.W.2d 537 (1961). Statutory test is not based upon absolute degrees of negligence, but rather upon the relative degrees of negligence between the parties. Sayers v. Witte, 171 Neb. 750, 107 N.W.2d 676 (1961); Bezdek v. Patrick, 167 Neb. 754, 94 N.W.2d 482 (1959); Continental Can Co. v. Horton, 250 F.2d 637 (8th Cir. 1957). Omission of element from instruction for making comparison was erroneous. Ripp v. Riesland, 170 Neb. 631, 104 N.W.2d 246 (1960). Even though defendant is guilty of negligence as a matter of law, the amount of damages to be awarded is subject to the provisions of the comparative negligence act. Bezdek v. Patrick, 170 Neb. 522, 103 N.W.2d 318 (1960). Unless reasonable minds cannot differ, trial court should leave duty of making comparison of negligence to the jury. O'Neill v. Henke, 167 Neb. 631, 94 N.W.2d 322 (1959); Zimmer v. Brandon, 134 Neb. 311, 278 N.W. 502 (1938); Casey v. Ford Motor Co., 108 Neb. 352, 187 N.W. 922 (1922). Failure to submit instruction on comparative negligence was not prejudicial to plaintiff. Owen v. Moore, 166 Neb. 239, 88 N.W.2d 768 (1958). Intent of statute is that the negligence of the parties shall be compared one with the other. Andelt v. County of Seward, 157 Neb. 527, 60 N.W.2d 604 (1953). Where plaintiff did not make prima facie case under guest statute, comparison of degrees of negligence was unnecessary. Bishop v. Schofield, 156 Neb. 830, 58 N.W.2d 207 (1953). In making comparison, there is no burden of proof on either party. Murray v. Pearson Appliance Store, 155 Neb. 860, 54 N.W.2d 250 (1952). Plaintiff may recover only if his negligence is slight in comparison with that of the defendant which is gross. Krepcik v. Interstate Transit Lines, 152 Neb. 39, 40 N.W.2d 252 (1949). Negligence of parties is to be compared one with the other in determining slight and gross negligence. Roby v. Auker, 151 Neb. 421, 37 N.W.2d 799 (1949). Even though defendant may be guilty of negligence as a matter of law, question of comparison of negligence where plaintiff is guilty of some negligence should be left to jury. Blanchard v. Lawson, 148 Neb. 299, 27 N.W.2d 217 (1947). The fact that plaintiff became so absorbed in his work as to detract him from a perilous position is not a defense to a charge of contributory negligence, but is a fact for consideration by the jury. Thomison v. Buehler, 147 Neb. 811, 25 N.W.2d 391 (1946). Where there was a conflict in the evidence as to whether or not plaintiff was in pedestrian lane with green light in her favor, or was proceeding diagonally across street, contributory negligence of plaintiff and the degree or quality thereof was for the jury, and instruction on comparative negligence was proper. Hammond v. Morris, 147 Neb. 600, 24 N.W.2d 633 (1946). Question of negligence and the degree of quality thereof, where motor vehicle being backed collided with pedestrian, was for jury. Chew v. Coffin, 144 Neb. 170, 12 N.W.2d 839 (1944). When an action under guest statute is based on gross negligence, the comparative negligence statute is applicable. Landrum v. Roddy, 143 Neb. 934, 12 N.W.2d 82 (1943). All questions of negligence are for the jury. Lewis v. Rapid Transit Lines, 126 Neb. 158, 252 N.W. 804 (1934). Instruction that plaintiff's damages should be reduced in proportion that her contributory negligence bore to the whole amount of damages was erroneous. Sgroi v. Yellow Cab & Baggage Co., 124 Neb. 525, 247 N.W. 355 (1933). Where both plaintiff and defendants are shown by evidence to have been negligent, court should instruct jury on comparative negligence of parties. Tempel v. Proffitt, 122 Neb. 249, 240 N.W. 285 (1932). Failure to keep proper lookout was under circumstances of case for the jury. Giles v. Welsh, 122 Neb. 164, 239 N.W. 813 (1931). Contributory negligence of one injured in collision between automobiles was for jury. Wortman v. Zimmerman, 119 Neb. 682, 230 N.W. 588 (1930). Where there is evidence of negligence and contributory negligence, court must give instruction as to comparative negligence rule. Lieb v. Omaha & C. B. St. Ry. Co., 119 Neb. 222, 228 N.W. 364 (1929). Unless evidence of defendant's negligence is legally insufficient or contributory negligence so clearly shown as to require verdict for plaintiff to be set aside, question is for the jury. Day v. Metropolitan Utilities Dist., 115 Neb. 711, 214 N.W. 647 (1927). Where negligence by both parties is shown, it is error to instruct that plaintiff is not barred from recovery unless his negligence was gross in comparison with defendants. Gibson v. Kelkenny, 112 Neb. 524, 199 N.W. 838 (1924). Unless plaintiff's negligence is more than slight, or defendant's negligence not gross in comparison, case should be submitted to jury. Traphagen v. Lincoln Traction Co., 110 Neb. 855, 195 N.W. 472 (1923); Baker v. Omaha & C. B. St. Ry. Co., 110 Neb. 246, 193 N.W. 341 (1923); Francis v. Lincoln Traction Co., 106 Neb. 243, 183 N.W. 293 (1921); Robison v. Troy Laundry Co., 105 Neb. 267, 180 N.W. 43 (1920). Instruction that contributory negligence of plaintiff, if proved, would entitle defendant to verdict, was erroneous because it ignores comparative negligence rule. Davenport v. Intermountain R. L. & P. Co., 108 Neb. 387, 187 N.W. 905 (1922). Where contributory negligence is shown, it is error to instruct jury to return verdict for plaintiff if they find defendant's negligence was proximate cause, without telling jury under what conditions plaintiff's negligence would defeat recovery. Bauer & Johnson Co. v. National Roofing Co., 107 Neb. 831, 187 N.W. 59 (1922); Morrison v. Scotts Bluff County, 104 Neb. 254, 177 N.W. 158 (1920). The doctrine of contributory negligence or comparative fault, contained in this section, is a defense separate and distinct from that of assumption of risk and while assumption of risk may act as a complete defense, comparative fault may simply go to mitigate damages. McPherson v. Sunset Speedway, Inc., 594 F.2d 711 (8th Cir. 1979). Comparative negligence statute is applicable to automobile rear-end collision cases. McQueen v. Navajo Freight Lines, Inc., 293 F.2d 590 (8th Cir. 1961). Comparative negligence statute was not applicable to a guest passenger in automobile. Luther v. Maple, 250 F.2d 916 (8th Cir. 1958). Under comparative negligence statute, test is not based on absolute degrees of negligence but upon a comparative test of relative degrees of negligence between the parties. Continental Can Co. v. Horton, 250 F.2d 637 (8th Cir. 1957). Where both parties are negligent, question of comparative negligence was matter for jury. Brunk v Chicago, B. & Q. R. R. Co., 207 F.2d 354 (8th Cir. 1953). The criterion is extent of plaintiff's negligence in comparison with defendant's negligence. Union Pac. R. R. Co. v. Denver-Chicago Trucking Co., 202 F.2d 31 (8th Cir. 1953). 4. Miscellaneous The trial court erred in failing to reduce plaintiff's recovery in an amount proportional to the amount of its agent's negligence, where the agent was negligent as a matter of law but not to a degree sufficient to bar the suit. City of LaVista v. Andersen, 240 Neb. 3, 480 N.W.2d 185 (1992). To entitle defendant to summary judgment on the issue of contributory negligence, defendant has the burden of proving, under the facts viewed most favorably to the plaintiff, that (1) plaintiff's contributory negligence was more than slight as a matter of law or (2) defendant's negligence was not gross in comparison to plaintiff's negligence as a matter of law. John v. OO (Infinity) S Development Co., 234 Neb. 190, 450 N.W.2d 199 (1990). A defendant may plead contributory negligence by alleging in his answer that the plaintiff's injuries were the direct and proximate result of his own negligence. Bashus v. Turner, 218 Neb. 17, 352 N.W.2d 161 (1984). In all actions brought to recover damages for injuries to a person or his property, all questions of negligence and contributory negligence shall be for the jury. Krug v. Laughlin, 208 Neb. 367, 303 N.W.2d 311 (1981). When, under the law and facts, the submission of the issue of comparative negligence is appropriate determination of the amount of damages is a jury question. Nickal v. Phinney, 207 Neb. 281, 298 N.W.2d 360 (1980). Ordinarily the questions of negligence, contributory negligence, and assumption of risk are for the jury, but where the facts adduced with respect to those questions are such that reasonable minds can draw but one conclusion therefrom, a directed verdict is proper. Garcia v. Howard, 200 Neb. 57, 262 N.W.2d 190 (1978). Rule that contributory negligence of more than certain percent will bar recovery not contemplated by statute nor would such a rule further administration of justice. Burney v. Ehlers, 185 Neb. 51, 173 N.W.2d 398 (1970). On remand of case for trial on issue of damages only, contributory negligence should be considered only in mitigation of damages. Scofield v. Haskell, 180 Neb. 324, 142 N.W.2d 597 (1966). Rendition of special verdict on degree of negligence required dismissal of action. Carlson v. Hanson, 166 Neb. 96, 88 N.W.2d 140 (1958). An instruction, in language of an opinion of the Supreme Court construing statute, approved in numerous cases for many years, will not be held reversible error unless prejudicial. Patterson v. Kerr, 127 Neb. 73, 254 N.W. 704 (1934). Degree of negligence comprehended by comparative negligence statute is not ordinarily applicable in actions involving motorists' guest statute. Sheehy v. Abboud, 126 Neb. 554, 253 N.W. 683 (1934). If there is any testimony to support verdict in favor of party having the burden of proof it is error to direct verdict against him. LaFleur v. Poesch, 126 Neb. 263, 252 N.W. 902 (1934). Statute merely changed legal effect of contributory negligence; burden of proof is placed on defendant. Schrage v. Miller, 123 Neb. 266, 242 N.W. 649 (1932). Instruction approximately in words of statute was not materially erroneous for failure to further explain slight and gross negligence. Kelso v. Seward County, 117 Neb. 136, 219 N.W. 843 (1928). A requested instruction was properly rejected as inconsistent with comparative negligence where it would instruct that one joint tort-feasor is entitled to contribution from others equally liable under the Federal Employers' Liability Act according to their share of the fault in causing the injury. Brassette v. Burlington Northern Inc., 687 F.2d 153 (8th Cir. 1982). Application of Nebraska comparative negligence statute would be inappropriate in a strict liability case. Melia v. Ford Motor Co., 534 F.2d 795 (8th Cir. 1976). Conflicting evidence, set out, concerning collision at private farm railroad crossing presented issue to be resolved by jury. Kloewer v. Burlington Northern, Inc., 512 F.2d 300 (8th Cir. 1975). It was a question for the jury whether passenger in automobile was guilty of contributory negligence in crossing accident case. Chicago, B. & Q. R.R. Co. v. Beninger, 373 F.2d 854 (8th Cir. 1967). Where reasonable minds might differ as to existence of contributory negligence, question should be submitted to jury. Surface v. Safeway Stores, 169 F.2d 937 (8th Cir. 1948).