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Lynn v. Jelinek8/23/2005
(Not Designated for Permanent Publication)
Inbody, Chief Judge, and Carlson and Moore, Judges.
INTRODUCTION
Robert Lynn, Jr., filed in the district court for Box Butte County a personal injury action against James Jelinek, individually and as personal representative of the estate of Edward F. Jelinek, deceased (collectively Jelinek). Lynn sought damages for injuries sustained after he walked in front of a truck operated by one of Jelinek's employees, Steve Burney, and the truck moved forward, striking Lynn. A jury found both Lynn and Burney to have been negligent, apportioning the negligence at 57 percent to Lynn and 43 percent to Burney, and the district court entered judgment for Jelinek. Lynn appeals from the order of the district court overruling his motion for new trial. For the reasons set forth herein, we affirm.
BACKGROUND
On the date of the accident, April 23, 2001, Jelinek employed both Lynn and Burney and asked them to go to a repair shop in Alliance to pick up a fuel truck recently purchased by Jelinek. Lynn parked the pickup truck he was driving near the passenger door of the fuel truck and let out Burney, who got into the fuel truck in order to drive it back to Jelinek's place of business. Burney was able to start the fuel truck and placed it in first gear, but when Burney started to let the clutch out, it would not release. Lynn drove out of the parking lot, planning to pull in behind and follow Burney in the fuel truck. When Burney did not pull out of the driveway, Lynn returned to the parking lot and pulled in beside the fuel truck. Burney motioned to Lynn, who approached the passenger door of the fuel truck to offer assistance. However, the passenger door would not open, and Burney was leaning over, not looking at Lynn. Lynn proceeded to walk in front of the fuel truck without taking further action to alert Burney to his presence. Lynn was walking close enough to the fuel truck to touch it. As Lynn walked in front of the fuel truck, the clutch released, and the fuel truck moved forward, striking Lynn.
Lynn filed his third amended petition in the district court on April 25, 2003. Lynn alleged that Burney was negligent in several respects with regard to his attempts to disengage the clutch of the fuel truck, which negligence was the sole proximate cause of Lynn's injuries. Lynn alleged serious injuries to his left shoulder and neck and sought medical expenses of $28,000, lost wages of $40,000, and other general damages.
Jelinek answered on May 5, 2003, generally denying the material allegations of Lynn's third amended petition and alleging that any injuries to Lynn resulting from the April 23, 2001, accident were caused or contributed to by the negligence of Lynn in a degree sufficient to bar or reduce his recovery. Jelinek alleged that Lynn was negligent in certain respects and that Lynn also understood and voluntarily assumed the risk of walking in front of the fuel truck.
A jury trial was held on September 15 through 19, 2003. In the present appeal, Lynn challenges only certain evidentiary rulings made by the trial court, and we set forth the evidence as it relates to those rulings in our analysis below. The jury found both parties to be negligent, specifically finding Lynn to have been 57 percent negligent and Jelinek, through its employee Burney, to have been 43 percent negligent. On October 7, the district court entered judgment in favor of Jelinek and dismissed Lynn's petition. The district court subsequently overruled Lynn's motion for new trial, and Lynn perfected his appeal to this court.
ASSIGNMENTS OF ERROR
Lynn asserts that the district court erred in
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