This is аn automobile accident case wherein plaintiff seeks to recover for personal injuries. Defendants denied negligence and alleged contributory negligence more than slight. Jury verdict and judgment were for the defendants. We affirm the judgment of thе District Court.
The accident occurred in the “T” intersection formed by 84th Street and Park Drive in Omaha, Nebraska. Eighty-fourth Street runs north and sоuth and Park Drive extends to the east. To the west was a tract being prepared for commercial building purposes. Defendants were hauling dirt to this tract. Eighty-fourth Street is a four-lane highway which narrows to a two-lane highway about 150 feet south of the interseсtion. Plaintiff was traveling south. Defendants’ truck entered the “T” intersection from the west.
Plaintiff urges that the court should have found defendаnts guilty of negligence as a matter of law; should not have submitted the issue of contributory negligence to the jury; and should have direсted a verdict for plaintiff. She is also critical of certain instructions. ' “It is the duty of the trial court to instruct the jury upon the
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issues presented by the pleadings and supported by the evidence.” Heavican v. Holbrook,
“A motion for directed verdict must be treated as an admission of the truth of all competent evidence submitted on behalf of the party against whom the motion is directed. Such party is entitled to have every controverted fact resolved in his favor and to have the benefit of every inference that can reasonably be deduced from the evidence.” Hansen v. Hasenkamp,
In accordance with these rules, was the case properly submitted to the jury? The evidence was conflicting in some respects but there was evidence to sustain the submission of the case to the jury and the verdict rendered. Plaintiff stated that she saw the defendants’ truck as it was еntering the highway and “Just coming down on the curb”; and that she was then about a block away and was going 40 miles per hour just before the accident. The front end of her automobile was badly damaged when she struck the truck just behind the cab.
The defendant-driver of the truсk testified that on approaching the highway he stopped and looked to the north, did not see any automobile cоming, and entered the highway. He then looked to the south as he was going to cross the south-bound lane and make a left turn. When the front end of the truck was in the highway, he heard a horn and again looked to the north. At that time he saw the plaintiff’s automobile about 250 feet away, thought he had time to cross, and at-temped to speed up to get out of the way. He also stated that bеfore the impact plaintiff shifted from the west outside lane to the passing lane and that the collision occurred in that lane. The impact pushed the truck up on two wheels and almost turned it over. Pictures show that after the accident plaintiff’s automobile was facing east across the two traffic lanes. There were two short skid marks which the truck driver *604 stated were there before the accident and which do not appear to be connected with the tires on plaintiffs car where it came to rest after sliding around.
Was the defendant-driver guilty of negligence as a matter of law? Section 39-638, R. R. S. 1943, requires one entеring a highway from a private road to “yield the right-of-way to all vehicles approaching on such highway.” We have said: “A vehiсle traveling on a highway at a reasonable and lawful rate of speed is not required to slow down or stop upon the appearance of a vehicle about to enter the highway from a private road until it reasonably appеars that its driver is not going to yield the right-of-way. * * *
“If the driver of an automobile entering a highway from a private road looks for aрproaching vehicles but fails to see one which is favored over him under the rules of the road, he is guilty of negligence. * * *
“The duty to look for approaching vehicles implies the duty to see that which is in plain sight.” Kohrt v. Hammond,
It is generally held that these rules аre not absolute. We have repeatedly held that an automobile driver is required to see only those approаching vehicles which relative to speed and distance are within the radius which denotes the limit of danger. See White v. Kluge,
Thе evidence shows that the defendant-driver stopped, looked, and failed to see plaintiff’s automobile. He then prоceeded slowly to enter the highway. Was plaintiff then within the radius denoting the limit of danger? Defendant-driver stated she was 250 feet awаy when he again looked after entering the highway. Plaintiff stated she was then a block away. Certainly at the
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time defendant-driver stоpped, looked, and failed to see her, she must necessarily have been a substantial distance farther away. Whether or not she was then within the radius of danger could well be a jury question in regard to which reasonable minds might differ. Furthermore, her right-of-way wаs not absolute. One must yield the right-of-way when necessary to avoid an accident. “One having the right-of-way may not on that acсount proceed in disregard of the surrounding circumstances and potential dangers. One having a right-of-way is not thereby relievеd from the duty of exercising ordinary care to avoid accidents.” Malcom v. Dox,
“There is no presumption or inference as to the negligence of a driver of an automobile arising from the mere fact that it collided with another vehicle.” Pongruber v. Patrick,
In view of the evidence the jury might well have, and apparently did, conclude that the defendant-driver did not act imрrudently in entering and crossing the highway and that the proximate cause of the accident was the speed and lack of сontrol of plaintiff’s automobile.
The instructions given and refused by the court have been examined and found to be free from error. We find no misconduct on the part of defendants’ counsel or errors in the admission of evidence.
No error appearing, the judgment of the District Court is affirmed.
Affirmed.