105 Neb. 658 | Neb. | 1921
Dewey Barrett, a minor, by his next friend, brought this action against the defendant to recover damages for personal injuries received by him in a collision between an automobile in which he was riding and a milk wagon driven by an employee of the defendant. His cause of action is based upon the alleged negligence of the defendant. At the close of the plaintiff’s testimony the trial court, on motion of the defendant, directed a verdict in its favor, and dismissed the plaintiff’s action. The plaintiff has appealed.
Counsel for plaintiff correctly, we think, states that the main question to be determined is whether the facts present a case to be submitted to the jury under the doctrine of the last clear chance. This involves an examination of the evidence.
The record shows that Twenty-fourth street in the city of Omaha extends north and south, and is intersected at right angles by K street. Both streets are paved. From curb to curb, Twenty-fourth street is 60 feet wide and K street 44 feet wide. Between the curbs and the lot line of the respective streets is a sidewalk space of 18 feet and 6 inches. On July 23, 1916, at about 2 a. m., an employee of the defendant, driving a team of horses attached to one of defendant’s milk wagons, was proceeding eastward
Do the facts, as above outlined, present a case for the application of the “last clear chance” doctrine? We are of the opinion that they do not. That rule of law is based upon the idea that, where a person is placed in a position of danger, whether negligently or not, and Avhere such peril is known to another, or Avhere the situation and surroundings are such that he- ought to have known of the danger, it then becomes the duty of the latter person to exercise every reasonable precaution to avoid injury to the party so in peril, and the failure to do so is actionable negligence. Johnston v. Delano, 100 Neb. 192.
Under the rule of the road, the defendant’s driver having first entered upon the intersection of the two streets, in the absence of some regulation to the contrary, had the right of way. In the use of the street he was of course bound to exercise ordinary care, but he was not obliged to stop or slacken his speed simply because an automobile was approaching at right angles at a rapid rate of speed. He was not bound to anticipate that the driver of the car would do some negligent act and thus expose the occupants of the car to danger. Under the circumstances then present, he had the right to presume that the driver of the car Avould stop, or turn to the left into K street, or if he attempted to pass in front that he Avould swing out far enough to the left to clear the wagon, especially in vieAV of the fact that there Avas a clear space in front of approximately 43 feet between the point of collision and the east curb line of Twenty-fourth street. The Avagon-driver had the right to act on this assumption until a situation Avas presented which would suggest to a reasonable person that the occupants of the car Avere being placed in a position of danger. It then became the
For cases sustaining the propositions discussed, see: Rupp v. Keebler, 175 Ill. App. 619; Elgin Dairy Co. v. Shepherd, 183 Ind. 466; Jahn & Co. v. Paynter, 99 Wash. 614; Brown v. Chambers, 65 Pa. Super. Ct. 373; Knox v. North Jersey Street R. Co., 70 N. J. Law, 347; Lawrence v. Goodwill, 186 Pac. (Cal. App.) 781.
As we view the testimony, the period of time elapsing between the time the occupants of the ear were placed in a position of danger and the instant of the collision was so brief as to be scarcely appreciable. The driver of the car estimated his speed at 20 miles an hour, which would be approximately 29% feet a second. The plaintiff’s estimate of the speed was 18 miles an hour, or approximately 26 feet a second. There is no testimony as to the speed of the milk wagon except that the horses were walking slowly. We can, however, take judicial notice that under the facts shown the wagon was not proceeding in excess of 5 miles an hour, in all probability less. It seems entirely safe to say that the car was moving four times as fast as the team. This relative speed would indicate that, when the driver of the car saw the team 45 feet away, the team was well into the street and approximately 7 feet from the point of collision. The car would cover this distance in about 1% seconds. At this distance there was nothing in the situation to suggest that the occupants of the car were being placed in a position of peril. Not until the driver of the car drove directly in front of the team, or was so close that it was apparent that he intended to do so, were the occupants of the car in a position of peril.
Under all of the circumstances it is quite apparent to us that the danger did not arise until almost the instant of the collision. It was so small a fraction of time that there was no reasonable opportunity of avoiding the collision after the occupants of the car were in a place of danger. In view of all of the circumstances we are convinced that reasonable minds could not say that the wagon-driver
We find no error in the ruling of the trial court, and the judgment is
Affirmed.