Thе plaintiff, Jack E. Converse, brought an action in the district court for Scotts Bluff County against the defendant, Jeremy P. Morse, by his father and next friend, Quentin Morse, to recover for personal injuries he sustained when his automobile hit the defendant’s stalled car. The jury found for the plaintiff.
The defendant appeals, assigning as error the district court’s failure to direct a verdict in his favor, the court’s failure to sustain his motion for new trial, the court’s failure to find that plaintiff’s testimony was discredited as a matter of law, and the court’s finding that the testimony of witnesses other than the plaintiff sufficiently sustained plaintiff’s burden of proof.
On the evening of November 23, 1985, the defendant left home in his midnight-blue Pontiac Trans Am to visit a friend. The night was dark. The defendant drove south on the county road until he reached the intersection of the county road and the “Experiment Farm Road.” He then proceeded to turn right, heading west on the Experiment Farm Road.
About halfway through his turn, the defendant’s car stalled. He looked to the west, saw nothing, and then looked to the east. There is a hill which rises to the east of the intersection, and from that direction, the defendant could see an oncoming car. So that the oncoming westbound car would not collide with his stalled car, the defendant coasted his car into the eastbound lane. He parked his car facing west in the southernmost lane of the road, on a bridge. The road slopes downhill from the bridge to the west.
The oncoming westbound vehicle, owned by Rick and Sandra Schwartzkopf, passed the defendant’s car safely. Rick Schwartzkopf testified that he sped up to pass the defendant’s *927 car so that he would not be on the bridge at the same time as a car that he saw approaching from the west. Approximately 3 seconds after he passed the defendant’s vehicle, Rick Schwartzkopf passed the oncoming car, which was driven by the plaintiff.
The defendant testified that after the Schwartzkopfs passed him, he turned off his headlights to aid him in restarting his car. However, Rick Schwartzkopf testified that the defendant’s lights were not on and that it took him a few seconds after he first saw something on the bridge to realize that it was a car. Sandra Schwartzkopf testified that she did not know it was a car until the defendant tapped his brake lights about 2 seconds before they passed him.
While attempting to restart his car, the defendant noticed the headlights of the plaintiff’s car, which was heading east toward him. The defendant continued trying to start his сar until the oncoming car was 300 to 400 feet from him, at which point he turned on his headlights and braced himself for a collision. The Schwartzkopfs, who witnessed the accident in the rearview mirror and through the back window of their car, testified that the defendant turned his lights on about 2 seconds before the collision. The plaintiff’s car hit the defendant’s car head on, injuring the plaintiff.
At trial, the plaintiff testified that as he turned onto Experiment Farm Road, from the east he noticed the glow from the Schwartzkopfs’ headlights coming over the hill. The plaintiff testified that as he met the Schwartzkopfs’ oncoming car, he was blinded by its headlights. A “second or so” after passing the Schwartzkopfs, “another set of headlights appeared out of nowhere right smack in front of” him, and before he could apply the brakes, he hit the defendant’s car. He stated that because he was blinded by the Schwartzkopfs’ oncoming car, he was unable to see the defendant’s car in time to avoid a collision.
However, at the plaintiff’s deposition taken approximately 6 months before trial, he stated that he met the Schwartzkopfs’ car as he turned onto Experiment Farm Road at the bottom of the hill, not on the hill. Also at his deposition, the plaintiff testified that the reason he was not able to see the defendant’s *928 car was that he was coming up an incline.
Because the plaintiff changed his testimony between the deposition and trial as to the location of the Schwartzkopf car when he passed it, thereby introducing for the first time at trial the excuse that he had been blinded by the Schwartzkopfs’ headlights, the defendant contends that the plaintiff’s testimony should have been discredited as a matter of law.
This cоurt first adopted the rule whereby a party’s testimony at trial may be disregarded if the testimony is inconsistent with testimony given at an earlier judicial proceeding in
Ellis v. Omaha Cold Storage
Co.,
In
Insurance Co. of North America
v.
Omaha Paper Stock, Inc.,
The rule was also given in
Momsen
v.
Nebraska Methodist Hospital,
For examples of other applications of this rule to plaintiffs, see,
Peterson
v.
Omaha & C. B. Street R. Co.,
Other cases stand for the proposition that the conflicting testimony need not be discredited, but merely presents a question of credibility for the jury to determine. The basis for these decisions is that the factors delineated in
Momsen
v.
Nebraska Methodist Hospital, supra,
are not applicable. As explained in
Momsen,
quoting
Kirchner
v.
Gast,
“Those cases where we have held the statements to be judicial admissions have been where it is patent that the witness deliberatеly changed his testimony to meet the necessities of the case, and where the change has been unexplained, or is unexplainable on any rational basis. We have then held it to be a matter of law, but otherwise it is a question of credibility for the trier of facts.”
210 Neb.at 53,
In
Kipf
v.
Bitner,
See, also,
Armer v. Omaha & Council Bluffs St. Ry. Co.,
The court in
Dorn
v.
Sturges,
This proposition was repeated in Kirchner v. Gast, supra, wherein the plaintiff’s deposition testimony and trial testimony differed as to preaccident speed, the length of skid marks, and the use of brakes. The court held that such testimony presented a question of credibility for the jury.
In Kluender v. Mattea,
*931 In the present case, in spite of defense counsel’s insistence that the plaintiff changed his testimony when he realized his earlier version “just wasn’t going to cut it,” it is not clearly apparent that the plaintiff’s testimony was changed because the necessities of his case demanded it, nor is it true that the plaintiff had no rational explanation for the change.
When asked why he had changed his version of where the Schwartzkopfs’ car was when he passed it, the plaintiff’s explanation was that after the deposition he realized he could not accurately gauge the location where he had met the Schwartzkopfs’ car and that he simply made a mistake when he said the Schwartzkopfs’ car was at the bottom of the hill. His explanation for not previously mentioning being blindеd by the lights was that no one at the deposition had asked him that question, and it had not occurred to him. Although the defendant contends that the plaintiff changed his story so that it would correspond to the Schwartzkopfs’ testimony, the plaintiff notified his counsel of the change the day after his deposition, long before the Schwartzkopfs testified at trial.
Furthermore, the plaintiff’s testimony at trial was substantiated by the testimony of other witnesses. Rick Schwartzkopf testified that approximately 3 seconds after he passed the defendant’s vehicle, he passed the plaintiff’s car. He and his wife testified that the defendant turned his lights on about 2 seconds before the collision. The plaintiff testified that a “second or so” after passing the Schwartzkopfs, the defendant’s headlights appeared in front of him, and he instantly hit the defеndant’s car. Thus, the plaintiff’s testimony is corroborated by the testimony of the Schwartzkopfs, and even if the plaintiff’s testimony were disregarded, sufficient evidence still exists which would justify a conclusion that the plaintiff passed the Schwartzkopfs’ car just a few seconds before hitting the defendant and could very well have been blinded by the Schwartzkopfs’ headlights.
The defendant next contends that even if he were negligent as a matter of law, the plaintiff’s violation of the “range of vision” rule constituted contributory negligence sufficient to bar his recovery.
In Mantz
v.
Continental Western Ins.
Co.,
The driver of a motor vehicle has the duty to keep a proper lookout and watch where he is driving even though he is rightfully on the highway and has the right-of-way. He must keep a lookout ahead or in the direction of travel, and he is bound to take notice of the road, to observe the conditions along the way, and to know what is in front of him for a reasonable distance.
Id.
at 453,
Moreover, a driver ordinarily has a duty to drive an automobile on a public street at night in such a manner that he can stop in time to avoid a collision with an object within the area lighted by his headlights, and the driver is negligent if he fails to do so.
In Prime Inc. v. Younglove Constr. Co., supra, the court stated the range of vision rule:
Generally, it is negligence as a matter of law if one operates a motor vehicle on a public street or highway and, on account of the manner of operation, is unable to stop such operator’s vehiclе or turn that vehicle aside without colliding with an object or obstruction on the street or highway within the operator’s range of vision.
Id.
at 430,
An exception to or exoneration from the range of vision rule exists when a motorist, otherwise exercising reasonable care, does not see an object or obstruction sufficiently in advance to avoid colliding with that object or obstruction, which is relatively indiscernible on account of its color similar to the street or highway and thereby is rendered indistinguishable from the surface.
*933 Id.
A case similar to the present one is
Monasmith v. Cosden Oil Co.,
The court first determined that the defendant was negligent: “Leaving an unlighted vehicle on [a] highway, on [a] dark night, without any warning, constitutes gross negligence, within the comparative negligence statute.”
Id.
at 329,
Where an object on a highway in front of one driving thereon at night is so nearly the color of the road that it may be difficult to distinguish it until quite close, it cannot be said, as a matter of law, that such person was guilty of more than slight negligence in his failure to seе it in time to stop his car or to prevent running against it.
Id.
at 330,
In Haight v. Nelson,
“The existence or presence of . . . blinding headlights, or other similar elements which materially impair or wholly destroy visibility are not to be deemed intervening causes but rather as conditions which impose upon the drivers of *934 automobiles the duty to assure the safety of the public by the exercise of a degree of care commensurate with such surrounding circumstances.” ...
“... [W]e have made exceptions to [the range of vision] rule when the nature of the object or its condition, such as color, dirt, et cetera, in relation to the highway or road, affected its immediate visibility or when, because of the lights of oncoming traffic, the drivеr’s attention is distracted or his vision impaired and his opportunity for immediate discernment thereby affected....”
Id.
at 344-46,
In
Bartosh
v.
Schlautman,
In
McClellen
v.
Dobberstein,
From the record in the present case, the inference can be drawn that at least from the time the plaintiff turned onto the Experiment Farm Road until a second or two before the accident, the defendant’s headlights were not on, nor were there any emergency flashers or other means of warning other motorists. The only other witnesses present that evening, the Schwartzkopfs, both testified that they had difficulty seeing the defendant’s vehicle. Rick Schwartzkopf testified that it took approximately 3 seconds after he came over the hill (with his halogen headlights on the bright setting) to ascertain that there was a car on the bridge, and his wife testified that it was not until the defendant tapped his brake lights, about 2 seconds before the Schwartzkopfs passed him, that she realized there was a vehicle on the bridge. Rick Schwartzkоpf testified that he had trouble seeing the defendant’s “black or real dark blue” car because “ [i]t was a dark night and dark highway and it was just hard to see.” He stated that the color of the defendant’s car and the color of the road on which it was parked were “similar, they were both dark.” Sandra Schwartzkopf testified that the car, roadway, and sky all appeared black to her. She also stated that “[t]he darkness blended together so if it would’ve been a white car it would have been much easier to see.”
The evidence in the record regarding the difficulty of seeing the defendant’s car against the dark road and sky, as well as the evidence that the plaintiff was blinded by the Schwartzkopfs’ headlights, was sufficient to bring the case within an exception to the range of vision rule. The defendant’s argument that the plaintiff’s violation of the range of vision rule barred his recovery as a matter of law is without merit.
It is well settled in this jurisdiction that with regard to the overruling of a motion for directed verdict made at the close of
*936
all the evidence, our review is controlled by the rule that a directed verdict is proper only where reasonable minds cannot differ and can only draw but one conclusion from the evidеnce, where an issue should be decided as a matter of law.
Commerce Sav. Scottsbluff v. F.H. Schafer Elev.,
A motion for new trial is addressed to the discretion of the trial court. In the absence of an abuse of discretion, a trial court’s disposition of a motion for new trial will be upheld on appeal.
DeCamp
v.
Lewis,
The court did not err in failing to direct a verdict in the defendant’s favor or in failing to sustain his motion for new trial. The record presented a question of fact for the jury. The judgment is affirmed.
Affirmed.