Plаintiff, a pedestrian, was struck by defendant’s car at an intersection, and brought this action to recover damages for personal injuries allegedly resulting therefrom. Upon trial to a jury, defendant’ was awarded a verdict and judgment. Plaintiff’s motion for new trial was overruled, and he appealed. Assignments of error were substantially thаt the trial court erred: (1) In giving instruction No. 3 on its own motion, and in failing to instruct the jury that plaintiff’s alleged contributory negligence was an affirmative defense to be proved by defendant; (2) in giving instructions Nos. 13 and 14, and each.of them respectively, on its own motion; (3) in failing to give the statutory definition of right-of-way accorded a pedestrian undеr section 39-751, R. S. 1943; and (4) in excluding certain rebuttal evidence offered by plaintiff. We sustain the foregoing first, second, and fourth assignments. Other assignments appear in plaintiff’s brief, but, in view of our conclusions, they will not require separate discussion.
Concededly, Central Avenue, a paved street approximately 50 feet wide, runs east аnd west in Nebraska City. It is a busy main thoroughfare, intersected by Eighth Street, a paved street approximately 44 feet wide, running north’ and. south. At the time of the accident, there was a metal stop button in the middle of Eighth Street, north of but adjacent to its intersection with Central Avenue, into which the movement of traffic was
Competent evidence introduced by plaintiff in support of the material allegations of his petition were substantially as follows: That on March 1, 1945, between 4:30 and 5 p. m., plaintiff, standing on the sidewalk at the edge of the curb, on the northwest corner of Central Avenue’s intersection with Eighth Street, looked both ways, west and east, and then started to walk south in the sidewalk space. He had taken three or four steps when defendant, driving his car from the north on Eighth Street at 10 to 15 miles per hour or more, failed to stop at the stop button, came on into the intersection, turned west on Central Avenue, without sounding his horn or giving any other signal, and, although plaintiff tried to step back, defendant’s car struck him on his left side, leg, and hip, with the front of the right front fender. Plaintiff was thrown up on the car between the fender and the hood, and defendant’s car proceeded west until it stopped at a point where the front end was about a car-length west оf the intersection, or where the front half of it was west of the sidewalk space and the back half was still therein, where plaintiff rolled off the car into the street.
There was evidence adduced in plaintiff’s behalf that defendant got out of the car to give assistance, and told plaintiff “I didn’t see you until I hit you. The sun was in my eyes.” Defеndant admitted that the sun flashed on his windshield and that he was blinded for a split second, seeing plaintiff afterward. An ambulance took plaintiff to a hospital, and it was discovered, without dispute, that he had a fractured left hip, and he claimed serious and permanent injuries and damages.
On the other hand, competent evidence introduced by defendant in support of the material allegations of his answer, was substantially as follows: That defendant stopped at the stop button on Eighth Street until several cars passed and its intersection with Central Avenue had
Defendant assisted plaintiff over to the north side of the car, out of the lane of traffic, where he leaned upon the right fender until an ambulance. arrived. At the time of the accident, plaintiff purportedly said to defendant, in the presence of defendant’s father, that: “he didn’t see me, and he didn’t know what had hit him.” “I didn’t see no car coming * * * You made an awful quick stop.” In the hospital three or four days later, plaintiff allegedly made similar statements.
Plaintiff, in his original petition, allеged that he was lawfully walking from the “southwest corner to the northwest corner” which was amended before trial to read “from the northwest corner to the southwest corner.” As held in Arman v. Structiform Engineering Co.,
In the foregoing situation, we conclude that the issues of negligence pleaded by plaintiff, and contributory negligence affirmatively pleaded by defendant, were questions for determination by the jury under appropriate instructions of the trial court.
At the outset, we will discuss plaintiff’s 'contention that the trial court erred in failing to give the statutory definition of right-of-way accorded a pedestrian under section 39-751, R. S. 1943. That contention of itself has no merit for the reason that plaintiff’s requested instruсtion No. 1, although marked “Refused” was actually given verbatim by the trial court ‘in instruction No: 7. It correctly and exactly' quoted the applicable provisions of the statute relating to the right-of-way' of pedestrians crossing a highway within a business or residence district and vehicles traveling thereon. " • '
In that connection, the term' “right-of-wаy”' used in the statute and in the instruction required no definition as argued by defendant, since they are words'of common use, generally understood by' everyone 'of ordinary intelligence.
As stated in Johnson v. Batteen,
With few immaterial' exceptions, the evidence adduced herein was very similar to that in Halliday v. Raymond,
If the accident happened as claimed by plaintiff, then defеndant, under the situation, would be guilty of negligence, which was the proximate cause of the accident. Under plaintiff’s theory and evidence, he had the right-of-way under the statute, and “It is the duty of the driver of an automobile to exercise reasonable care in its operation, and where pedestrians are numerous аnd traffic is congested, the degree of care required must be commensurate with the danger reasonably to be anticipated.” Christoffersen v. Weir,
It was plaintiff’s duty, as an ordinarily cautious and prudent person, to look to the right and left in crossing an intersection, to observe cars coming from either direction. However, hе had the right to assume that vehicles approaching from the rear would exercise ordinary care in keeping a lookout for him, and there was no duty imposed upon him to maintain a lookout to the rear to avoid a charge of negligence. On the other hand, if plaintiff was proceeding from the south, as contended by defendant, and saw, or by the exercise of reasonable care should have seen, defendant’s car, and then suddenly either walked into its path or into it, he would be guilty of negligence as a matter of law. The evidence being in conflict, however, the questions of negligence and contributory negligence werе for the jury. Halliday v. Raymond, supra, and cases cited therein.
Instruction No. 13, about which plaintiff complained, left out the qualification that plaintiff, if proceeding from the north on the cross-walk, had a right to assume that vehicles approaching from the rear would exercise ordinary care in keeping a lookout for him, and that under such circumstances he was under no duty to maintain a lookout to the rear to avoid a charge of negligence. Viewed in that light, instruction No. 13 presented only
Plaintiff complained of instruction No. 3, upon the ground that it wrongfully placed upon him the burden of proving that he was not guilty of contributory negligence, and that the trial court failed to instruct thе jury that the burden of establishing contributory negligence was upon defendant as an affirmative defense. We conclude that instruction No. 3 did have the effect of erroneously placing the burden of proof entirely upon plaintiff. The other instructions given failed in any manner to instruct the jury in conformity- with the rule that: “If contributory negligence is relied upon by defendant as an affirmative defense, the burden is upon him to prove it by a preponderance of the evidence pertinent to that issue contained in the whole record, except in so far as the same may appear in evidence adduced for the plaintiff.” Roberts v. Carlson,
In that regard, Thomas Kilpatrick & Co. v. London Guarantee & Accident Co.,
Plaintiff argued that instruction No. 14, giving defendant the benefit of the doctrine of emergency pleaded by
In the realm of negligence cases, an emergency has become the basis for a rule of law which is dependent for application upon two factual elements. This court has held that: “Where one driving an automobile is suddenly cоnfronted by an emergency, requiring instant decision, he is not necessarily guilty of negligence in pursuing a course which mature reflection or deliberate judgment might prove to be wrong.” Belik v. Warsocki,
However, that rule cannot be successfully invoked by either party in a negligence case unless there is competent evidenсe to support a conclusion that a sudden emergency actually existed, and then it cannot be successfully invoked by one who has brought that emergency upon himself -by his own acts or has not used due care to avoid it.. Hughes v. Omaha & C. B. Street Ry. Co.,
An examination of instruction No. 14 discloses that it gave defendant the benefit of the doctrine of emergency, not only by factually assuming that an emergency existed, but also by omitting the factual qualification-that' the doctrine could not be invoked by defendant if it were found that he had brought the emergency upon himself by his own acts or had not used due care to avoid it. Both elements were factual questions for determinаtion by the jury, and the failure to so submit them was prejudicially erroneous. -
Finally, plaintiff argued that the -trial court erred in the exclusion of certain rebuttal evidence. We sustain that contention.
In that connection,-an alleged eyewitness testified in detail and at length in, support of defendant’s contentions. There is other evidеnce -from which it could be reasonably inferred that he was not an eyewitness, but got his first information thereof from a newspaper. Concededly, he had previously become involved with
Upon cross-examination, the witness was asked: “Now, at that' time and place, when you paid for the tire, didn’t say that you would get — didn’t you say to Mrs. Frеd Johnson in words or substance that you would have your revenge-for this deal? A No, I never did. * * * Q Now, didn’t you make that-statement that you would have your revenge for this matter in-the presence of Fred Johnson too? A No sir.”
In rebuttal, Mrs. Eva B. Johnson was asked:- “Q Now, Mrs. Johnson, you- heard his statement regarding the controversy about the automobile tire, did you not? A Yes sir. Q You heard his statement that he stated that he did not make the-statement that he would have revenge on you and Fred Johnson; - you heard that too? A Yes sir.” She was then asked to “tell the jury what conversation you had with” the witness “during last fall regarding the automobile tire; what he said to you, and what you said-to him.” Objection sustained. She was thеn asked whether, when the witness made settlement with her for the tire, he had said that “he would have revenge for that?” Objection thereto was also sustained, whereupon plaintiff made no offer of proof.
It is generally the rule that: “Ordinarily in order to predicate error upon a ruling of the court refusing to permit a witness to testify, or to answer a specific question, the record must show an offer to prove the facts sought to be elicited.” In re Estate of Woodward, 147. Neb. 270,
Viewed in that light, we call attention to the rule that: “Cross-examination of a witness to show bias, hostility, or that he is actuated by a spirit of revenge, is entirely distinct from impeachment, which' is governed by its own rules of evidence.” Vassar v. Chicago, B. & Q. R. R. Co.,
In the latter opinion, it- was said: “A very old New York case states: ‘It is always competent to show that a witness is hostile to the party against whom he. is called; that he has threatened revenge, or that a quarrel exists between them. A jury would scrutinize, more closely and doubtingly, the evidenсe of a hostile than that of an indifferent or friendly witness. Hence, it is always competent to show the relations which exist between the witness and the party against, as well as the one for, whom he was called.’ Starks v. People, 5 Denio (N. Y.) 106.
“ ‘Hostility of a witness to the defendant may be proved by any competent evidence, either by the witness himself or by examination of other witnesses as to facts from which such hostility appears; it being unnecessary in such case to first examine the witness as to his hostility.’ People v. Michalow (
“ ‘Generally, on cross-examination of a witness, any fact may be elicited which tends to show bias or partiality, and if the witness denies thе fact showing the bias or interest, the cross-examining party may call other
“And it is further held that considerable latitude should be allowed in eliciting from a witness, or in attempting to elicit and to establish, bias, hostility, corruption, or interest of the witness bearing upon his credibility. Glass v. State,
For the reasons heretofore stated, the judgment should be and hereby is reversed, and the cause is remanded for new trial.
Reversed and remanded.