Lammers v. Carstensen

109 Neb. 475 | Neb. | 1922

Day, J.

Alphonse Lammers, the plaintiff, brou'ght. this action against the defendant, Hans Carstensen, to recover damages to the plaintiff’s automobile, alleged to have been caused by the negligence of the defendant, which respited in a collision between the automobiles of the respective parties. The trial resulted in a verdict and judgment for the defendant. Plaintiff appeals.

The errors relied upon for a reversal of the case are: That the verdict is against the testimony; that it was rendered in disregard of the court’s instructions; and that the court erred in failing to give an instruction asked by the plaintiff,

The record shows that on the afternoon of June 20, 1920, Miss Jessie Rees had possession of the plaintiff’s Ruick automobile as bailee, and was driving the car on a trip from Hartington, Nebraska, to Wayne, Nebraska. Besides herself, three other persons were in the car. Ththighway over which she was- driving ran past the defendant’s residence, on a farm about two miles southeast of the town of Laurel. At and near the place of the collision the roadway was graded up to a width of about 24 feet, had a hard, smooth surface, and was in splendid condition. As the plaintiff’s car was being driven south along this highway at a rapid rate of speed, the defendant drove his car, a Port, from his premises, approaching the highway from the west. There was a row of trees along the north side of the defendant’s private driveway, leading to the public highway, and also a row of trees on the west side of the public highway. The low branches and heavy foliage of these trees obstructed the view toward the north of a person in a car coming out of the private driveway, until the west side of the roadway was reached. The same obstruction also prevented a driver of a car approaching from the north from seeing an automobile coming out of the private driveway. Just as the front wheels of the defendant’s car entered upon the west side of the roadway, defendant saw the plaintiff’s car approaching on the west side of the roadway about 150 feet distant, traveling at a high speed. In describing the situation, he says the car was coming in a cloud of dust at 40 to 50 miles an hour. Miss Rees, the driver of plaintiff’s car, testified that she was driving between 25 and 30 miles an hour. Defendant was driving, according to Ms estimate, between 3 and 4 miles an hour, and, according to plaintiff’s testimony, from 7 to S miles an hour. Confronted by this sudden emergency, the defendant concluded that he did not have time to cross the roadway far enough to permit plaintiff’s car to pass in his rear, and therefore immediately stopped his car, Avhich left his car standing crosswise of the roadway, the rear Avheels being about 2 feet east of the.west line of the roadway. Miss Rees, acting on the assumption that the defendant would drive on across the road, steered her car to the right, intending to pass in the rear of the defendant’s car. A bank along the west side of the roadway at that precise point prevented Miss Rees from turning further to the right than she did. She also applied the brake in an endeavor to stop. In this , situation the plaintiff’s car collided with the rear end of defendant’s car Avith such force as to turn plaintiff’s car completely over twice, leaving it standing right side up cm a little bank at the side of the road about 50 feet from the point of collision. The plaintiff’s car was badly damaged, and defendant’s car suffered but little injury.

Under the facts, as shown by the record, we are of the opinion that whether the defendant was negligent in stopping his car as he did was a question for the jury to determine. A sudden emergency was presented by the situation, in which all the parties Avere placed in a position of peril, and quick determination and quick action Avas required. If the plaintiff’s car was moving at the rate of speed estimated by some of the witnesses, or if the distance from the scene of the accident Avas as given by one of the witnesses, approximately. 2 seconds elapsed betAveen the time the approaching car could have been seen and the impact. Taking any view of the testimony, it is plain that but 3 or 4 seconds intervened between the time the plaintiff’s car could have been seen and the coilision.

Users of the highway are required to exercise reasonable care. Wbat is reasonable care must in each case be determined by its own peculiar facts and circumstances-As we view the testimony and the circumstances, the case was peculiarly one within the province of the jury.

The rule is well established that, where there is substantial evidence supporting the verdict of a jury, the judgment will not be disturbed unless upon the whole evidence it, appears that the verdict is clearly wrong. „ The instructions given by the court fully and fairly submitted the questions presented by the record to the jury. The verdict, as we view it, is responsive to the evidence and not contrary to the instructions.

The instruction asked for by plaintiff, the refusal of which is assigned as error, was equivalent to an instructed verdict in his favor, and was properly refused.

Upon- an examination of the record we find no error. The judgment of the district- court is, therefore,

Affirmed.