10 N.W.2d 447 | Neb. | 1943
Plaintiff brought this action to recover damages for personal injuries sustained by him when a motorcycle on which he was riding collided with an automobile driven by the defendant. Jury was waived, the case was tried to the court, and the trial court entered judgment dismissing the plaintiff’s petition. Motion for a new trial was overruled. Plaintiff appeals.
Plaintiff’s petition alleged the factual situation with reference to the accident, the injuries received, damages sustained, and several separate charges of negligence against the defendant, invoked the doctrine of the last clear chance, and prayed for damages. Defendant’s answer admitted the collision, denied negligence on his part, alleged contributory negligence on the part of plaintiff which constituted the proximate cause of the accident and resulting damages, set forth separate charges of negligence on the part of the plaintiff, and prayed for dismissal of the plaintiff’s petition. The reply was a general denial.
Exhibits 10 and 11 appearing in the record are maps drawn to scale, showing the respective distances and the state highway signs with reference to speed, slowing down, curves, etc. U. S. highway No. 6 is an arterial highway. The plaintiff proceeded to the west on the route that bypasses the city of Lincoln, over a viaduct. From the top of this viaduct there is a grade of 15 feet, and to the west thereof for 300 feet it is level to the center line where Seventieth street intersects highway No. 6. The highway is a paved slab 20 feet in width. Seventieth street is paved and 28 feet in width. In the vicinity of Seventieth street the right of way for road construction is 120 feet; that is, 60 feet on each side of the highway, which is separate and distinct from the paved portions of the highway. The intersection is within the corporate limits of the city of Lincoln. The collision occurred in the intersection of U. S. highway No. 6 and Seventieth street. The Pontiac car driven by the defendant is 16 feet, 9 inches long; the Harley Davidson two-cylinder motorcycle driven by the plaintiff is 3 feet, one inch wide, and 7 feet, 8 inches long.
The substance of plaintiff’s testimony on cross-examina
Defendant’s testimony discloses the following: He was driving a 1940 Pontiac automobile. He stopped at the stop sign which is west of Seventieth street, looked in both directions and saw no motor vehicle. He first observed the plaintiff’s motorcycle when the front end of his car was about four feet north of the center line of highway No. 6. The motorcycle was approximately 175 feet east, on the north side of the highway. The defendant endeavored to speed up his car to clear the highway and get out of the path of the motorcycle. He shifted into second gear and
The defendant testified further: “He (plaintiff) had an idea I was stopping and I thought I was clearing this road for him, giving him his right side on this road, * * * and I tried to get out of his way to clear the car and the road and he thought he would give things the gun and come in front of me and when he saw I was going on, then he come in, then he swung in, then he tried to throw it, and going so fast he couldn’t do anything.” From the time defendant first saw the motorcycle he watched it. When it turned over to the south side of the highway, it was 60 to 70 feet east of the intersection; that is when the defendant thought the motorcycle was going to pass in front of him. The front of defendant’s car was four or five feet over the center of the highway at that time. When the plaintiff was about 70 feet east of him and starting onto the south side of the highway, it appeared to defendant that there would be a collision. After the accident, the motorcycle turned over on its side. It was headed southwest and was two feet east of the left front wheel of defendant’s car.
A police officer of the traffic division talked with the defendant within a half-hour after the accident. Defendant told the officer he was going from five to ten miles per hour at the time of the collision, and prior thereto about five miles. He said he stopped at the stop sign and then start
The plaintiff contends that the court erred in failing to make separate findings of fact and conclusions of law, as requested by the plaintiff. Section 20-1127, Comp. St. 1929, provides:
“Upon the trial of questions of fact by the court, it shall not be necessary for the court to state its finding (s), except, generally, for the plaintiff or defendant, unless one of the parties request it, with a view of excepting to the decision of the court upon the questions of law involved in the trial; in which case the court shall state in writing the conclusions of fact found separately from the conclusions of law.”
An examination of the plaintiff’s request in such respect discloses that plaintiff requested the court to find that all of the allegations and charges of negligence alleged in his petition are true, and, with respect to the conclusions of law, that each of the defendant’s acts, constituting 14 separate charges of negligence, constituted negligence on the part of the defendant and was the proximate cause of the accident; that defendant had the last clear chance of avoiding the accident, and his failure to avoid the collision was negligence and the proximate cause of the accident; that the plaintiff was not negligent, and that his damages are in the total amount sued for, viz. $25,000.
The plaintiff next contends that the court erred in holding that the last clear chance doctrine was not applicable to the defendant.
The person who has the last clear chance of avoiding an accident is considered, in law, solely responsible for the accident, notwithstanding the negligence of the person injured. See Omaha Street R. Co. v. Martin, 48 Neb. 65, 86 N. W. 1007; Zelenka v. Union Stock Yards Co., 82 Neb. 511, 118 N. W. 103; Wilfong v. Omaha & C. B. Street Ry. Co., 129 Neb. 600, 262 N. W. 537; Carnes v. DeKlotz, 137 Neb. 787, 291 N. W. 490; 45 C. J. 989.
Plaintiff invokes the doctrine of the last clear chance in his petition as follows:
“Defendant, knowing plaintiff was in a position of peril from which he could not extricate himself, failed to use due care to avoid a collision with plaintiff.
“Defendant, knowing plaintiff was in á position of peril from which he could not extricate himself, failed to stop his automobile or decrease its speed in order to avoid a collision with plaintiff.”
Section 39-1036, Comp. St. Supp. 1941, provides in part: “All motor vehicles entering or crossing such state highways on which stop signs are erected shall come to a full stop as near the right of way line as possible, before driving onto such state highway, and, regardless of direction, shall give the right of way to vehicles upon said highway.” The foregoing provision of the statute is the one applicable in entering an intersection from a street or side road onto’ an arterial highway.
Considering the evidence: The plaintiff first saw the defendant’s car when he was at a distance of at least, or more than, a block away, 300 to 400 feet. From his testimony, it is observed that he constantly watched the movement of the defendant’s car. He noticed the relative position of the car at all times as it proceeded into and across the intersection. He had not slackened his speed to such an extent that he, himself, could have avoided the accident. In fact, the evi
“The doctrine of the last clear chance does not apply where the negligence of the injured party is contemporaneous and active up to the very moment of an accident, and thus contributed to cause the accident.” Hughes v. Omaha & C. B. Street Ry. Co., ante, p. 47, 8 N. W. (2d) 509. See, also, Long v. Guilliatt, 137 Neb. 199, 288 N. W. 689.
The correctness of the foregoing proposition admits of no doubt. When the plaintiff was more than a block to the east of the intersection, the defendant was within 25 feet of the north edge of the intersection, and, when the plaintiff
We further conclude that the record in this case establishes that plaintiff was guilty of more than slight negligence. That being true, the question becomes one of law for the court, and it would be the duty of the court to direct a verdict for the defendant. See. Eaton v. Merritt, 135 Neb. 363, 281 N. W. 620; Whittaker v. Hanifin, 138 Neb. 18, 291 N. W. 723.
Where a jury is waived and a trial had to the court, and -the court finds that the evidence establishes that the plaintiff was guilty of more than slight negligence, it becomes a question of law for the court, and it is the court’s duty to determine the matter as a proposition of law. In Neill v. Dakota County, 140 Neb. 26, 299 N. W. 294, this court held: “Where a jury is waived by the parties to an action at law in the district court, the findings of the trial judge on issues of fact are equivalent to the verdict of a jury and will not be reversed on appeal, if supported by sufficient evidence.”
For the reasons given in the opinion, the judgment of the trial court dismissing plaintiff’s petition is affirmed.
Affirmed.