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State v. Houpt6/1/2004
ues used to test his blood.
We conclude that the district court did not err in admitting the results of Houpt's blood test at trial and consequently did not err in denying Houpt's motion in limine or his motion to suppress. Houpt's assignment of error is without merit.
2. Jury Instructions
Houpt asserts that the district court erred in instructing the jury on certain issues. Specifically, Houpt asserts that the district court erred in instructing the jury on proximate cause by refusing to instruct the jury as to an efficient intervening cause, failing to instruct on proof of speeding, and failing to provide definitions of "reckless" and "wanton act."
In an appeal based on a claim of an erroneous jury instruction, the appellant has the burden to show that the questioned instruction was prejudicial or otherwise adversely affected a substantial right of the appellant. State v. Putz, 266 Neb. 37, 662 N.W.2d 606 (2003), cert. denied ___ U.S. ___, 124 S.Ct. 568, 157 L. Ed. 2d 429. To establish reversible error from a court's refusal to give a requested instruction, an appellant has the burden to show that (1) the tendered instruction is a correct statement of the law, (2) the tendered instruction is warranted by the evidence, and (3) the appellant was prejudiced by the court's refusal to give the tendered instruction. State v. Brouillette, 265 Neb. 214, 655 N.W.2d 876 (2003).
(a) Efficient Intervening Cause
The district court gave the following instruction concerning proximate cause:
A proximate cause is a cause that produces a result in a natural and continuous sequence, and without which the result would not have occurred.
The intervening action of a third person is not a defense to a prosecution for motor vehicle homicide unless such action is the sole proximate cause of the death. Such action may be considered on the issue of whether the conduct of the accused was a proximate cause of the homicide.
Houpt proposed the following instruction on proximate cause: "The proximate cause of a death is that cause which, in the natural and continuous sequence, unbroken by an efficient intervening cause produces the death, and without which the death would not have occurred." Houpt proposed the following instruction, defining "efficient intervening cause": "An efficient intervening cause is a new and independent act, itself a proximate cause of death, which breaks the causal connection between the original illegal act and the death." Both of these proposed instructions were refused by the district court.
In refusing Houpt's proposed instructions, in particular, the separate instruction defining "efficient intervening cause," the district court relied on Sacco v. Carothers, 253 Neb. 9, 567 N.W.2d 299 (1997). In Sacco, a bar patron sued the bar owner for injuries he sustained in a fight with a fellow patron, which fight occurred outside the bar after the bartender instructed the patrons to go outside with their disagreement. On appeal, the Nebraska Supreme Court discussed the concept of an efficient intervening cause. The court stated that an efficient intervening cause is a new, independent force intervening between the defendant's negligent act and the plaintiff's injury by the negligence of a third person who had full control of the situation, whose negligence the defendant could not anticipate or contemplate, and whose negligence resulted directly in the plaintiff's injury. Id. The court further stated that an efficient intervening cause must break the causal connection between the original wrong and the injury. Id. The court noted that the doctrine that an intervening act cuts off a tort-feasor's liability comes into play o
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