## Facts

- A 13-year-old plaintiff rode a saddle horse south on the Mitchell bridge, keeping to the west (right) side.
- She heard and saw a truck driven by the defendant approaching from the rear and slowed from a gallop to a slow trot.
- The plaintiff testified she was about two feet from the west railing and that the horse stayed straight and did not veer left.
- The defendant’s truck struck the horse from behind, seriously injuring the plaintiff; the horse was so badly injured it had to be destroyed.
- The plaintiff had no memory of events after impact due to her injuries.
- Physical evidence included blood on the west rail and on the pavement within about two feet of the west rail, consistent with the plaintiff’s location.
- A distant eyewitness testified he saw the plaintiff and horse on the side of the road at the moment of collision.
- The trial court granted the defendant’s motion for a directed verdict at the close of the plaintiff’s evidence and entered judgment for the defendant.

## Issues

1. Whether the plaintiff’s evidence, taken as true with all reasonable inferences, was sufficient to submit negligence and causation to the jury, making a directed verdict improper.
2. Whether the trial court improperly resolved credibility, competency, and conflicts in the plaintiff’s evidence as matters of law in granting a directed verdict.
3. Whether inconsistencies in testimony, including changes from a prior trial on an immaterial matter, justified directing a verdict.
4. Whether failure to comply with the statutory “statement of errors” requirement on appeal required affirmance absent a showing of prejudice.

## Decision

- The Nebraska Supreme Court reversed the judgment and remanded for a new trial.
- The court held the plaintiff’s proof (testimony plus physical evidence) fairly tended to establish a prima facie negligence case and required jury submission.
- The court held that attacks on the eyewitness’s reliability due to distance, and other conflicts or inconsistencies, went to weight and credibility for the jury.
- The court rejected the claim that changes in prior testimony on an immaterial point demonstrated fraudulent motive warranting a directed verdict.
- The court declined to affirm based on the “statement of errors” argument because no prejudice to the appellee was shown.

## Legal Principles

- On a motion for directed verdict, the evidence favorable to the nonmoving party must be taken as true, all controverted facts resolved in that party’s favor, and the party given the benefit of all reasonable inferences.
- In a jury case, witness credibility and the weight of testimony are ordinarily questions for the jury, not the court.
- If the plaintiff’s evidence fairly tends to prove material facts necessary for a prima facie case, contradictions or inconsistencies generally do not justify a directed verdict.
- A change in a party’s testimony from a prior trial on an immaterial issue does not, by itself, support a finding of fraudulent motive or justify removing the case from the jury.
- A party ordinarily may not impeach its own witness solely to attack veracity, but may show that some or all testimony is untrue through examination or contradictory material evidence and may accept portions while rejecting others.
- Failure to serve and file a required appellate “statement of errors” does not require affirmance absent a showing that the omission prejudiced the appellee.

## Conclusion

The court held that the plaintiff produced sufficient evidence to require jury determination of negligence and causation and that the trial court erred by directing a verdict based on credibility and evidentiary conflicts; the case was reversed and remanded for a new trial.


Guyette v. Schmer, 35 N.W.2d 689 (Neb. 1949)