293 N.W. 287 | Neb. | 1940
This is an action by plaintiff, Kathryn F. Fischer, administratrix of the estate of her deceased husband, Hermán
At St. Edward, Nebraska, Herman J. Fischer became a gratuitous guest on the driver’s seat in the cab of a motor truck. The truck was loaded with cattle for the market at Omaha and was in charge of Lawrence Kleve, the driver. When he arrived from the west at the south end of Rivett Siding, near Omaha, on Maple street where it crosses defendant’s railway at grade and approximately at right angles, a train with a freight car directly across Maple street was standing on the main line of the railway track. The truck driven by Kleve struck the freight car a violent blow about 1:05 a. m., Monday, November 27, 1934, and Fischer, a passenger in the truck, was instantly killed.
In her petition plaintiff alleged in different forms that defendant was guilty of negligence in blocking the highway, at the time and place and in the manner already indicated, on a dark, cloudy, rainy and foggy night, without stationing a member of the train crew at the place of danger to give warning of it to approaching motorists by signal lights, flares, torches or other means.
Defendant denied the negligence charged to it in the petition, and pleaded in defense of the action that the collision and resulting damages were caused by the negligence of the truck driver and the passenger.
Upon a trial of the cause the jury rendered a verdict in favor of plaintiff for $25,000, and from a judgment therefor defendant appealed.
At the close of the testimony, the sufficiency of the evidence to support a finding in favor of plaintiff on the issue of defendant’s negligence was challenged by motion for a peremptory instruction. The motion was overruled and the case submitted to the jury. Failure of the trial court to enter a nonsuit is urged on appeal as a ground for reversal. If plaintiff did not prove actionable negligence of defendant, the submission of the case to the jury was erroneous.
There was a warning signal on Maple street 428 feet west
On the evening before the accident, Lawrence Kleve, the
A passenger in the cab of a truck which followed the one in the collision testified he saw it there when close to a' bridge 163 feet west of the crossing, also saw the freight train and the freight car, stopped about 75 feet from them and walked to the scene of the accident before the men were taken from the wreck or the impacted cars moved.
The law applicable to established facts has been stated as follows:
“A motorist who drives his automobile so fast on a highway at night that he cannot stop in time to avoid a collision with an object within the area lighted by his headlights is negligent as a matter of law.” Redwelski v. Omaha & C. B. Street R. Co., 290 N. W. 904 (137 Neb. 681) following Roth v. Blomquist, 117 Neb. 444, 220 N. W. 572; Cotten v. Stolley, 124 Neb. 855, 248 N. W. 384; Most v. Cedar County, 126 Neb. 54, 252 N. W. 465; Hendren v. Hill, 131 Neb. 163, 267 N. W. 340.
Fog and mist at night increased the’necessity for care on the part of the driver and his guest. Kleve drove his truck at such a speed and with such indifference to safety as to prevent him from stopping in time to avoid a collision with the railroad freight car. It necessarily follows as a
Reversed and dismissed.