*1 court erred when it her failed award one-half amount money joint removed Kenneth account after a restraining upon order was served him. The order issue at restrained Kenneth disposing property described order, except argues in the usual course of business. Elaine in her brief that since he did specifically not account for “where trial, it went” at money. she should recover half of for Brief Appellant at 24. (Reissue Neb. Rev. Stat. 42-357 1984), which provides restraining for the issuance of orders such as the one here, provides issue part: party such whom “[T]he order upon is directed shall order the court account all for expenditures unusual made upon after such order served him or (Emphasis her----” supplied.) The record before us not does requested demonstrate that Elaine the court for an order requiring expenses Kenneth to account for these Kenneth was ever ordered to expenses. account for these There is no suggesting evidence the expenditures were unusual or Kenneth away. misused the funds or secreted them Since Kenneth was expenditures, not ordered to account these we cannot find that his failure to any do so entitles Elaine to more property dividing than has been her in awarded the decree property parties. between the We find no merit in final assignment of uphold error and the decree of the trial court modified.
Affirmed as modified. Transfer, , appellant, McMullin Inc. v. State of Nebraska al., appellees. et
no *2 Fullner, Jr., Moyer, Egley & for Moyer, Moyer,
George H. of appellant. General, Attorney and John R. Spire, M.
Robert Thompson, appellee for State of Nebraska. Henatsch, appellee Village
Jerry of & for W.Katskee Katskee Shelby. of C.J., Hastings, Caporale,
Krivosha, Boslaugh, White, Shanahan, Grant, and JJ. Per Curiam. Transfer, Inc.
Plaintiff-appellant, (hereinafter McMullin against brought defendants-appellees, McMullin), this action Village Shelby, property damages, State of of Nebraska use, resulting the damages loss of and related from collision of a trailer, being pulled by the plaintiff leased tractor, extending with a limb over the The truck assigned damages lessor the trailer had its claim for to of alleged plaintiff. petition, In the the the State and negligent keeping of were in not the free reasonably obstructions and in a safe condition. The defendant answered, any generally denying liability of State Nebraska proximate the pleading that sole cause accident imputed negligence, plaintiff, which was to contributory negligence and that the driver was therefore, and, slight recovery. to more than bar alleged plaintiff’s contributory negligence Defendant State failing proper in to maintain a lookout included its failing “stop, and in swerve divert course of said alleged also vehicle avoid the collision.” Defendant State operating plaintiff had assumed the risk the accident exceeding height, vehicle 6 inches in as set out in Neb. feet 39-6,178 (Reissue 1984). Rev. Stat. § County duty The district court for Polk found that a existed injury protect public arising from from the lawful use of a highway, including damage overhanging trees. The court gratuitously also found the State had assumed the maintaining Shelby within and had thus relieved Shelby liability. The court further assumption concluded that defense risk asserted pursuant to 39-6,178(2) was not available to defendant State. negligent maintaining The court held that the State was that, highway but present, the circumstances contributory negligence operator of the vehicle was more and, slight imputed than when plaintiff, to the was sufficient to recovery. bar plaintiff timely
The appealed appeal, to this court. In its plaintiff alleged determining plaintiff’s the trial court erred in in a recovery. plaintiff alleged sufficient to bar the trial court entering judgment erred in for defendant State *3 plaintiff, assign but did not error the trial as court’s order dismissing village. cross-appeal the The State did not and seek reversed, dismissing to have the order the and we only appeal involving therefore consider the case on as one appellant the appellee. State as For the reasons stated, judgment hereinafter the of the trial court is affirmed. following. record discloses the Lester Clure was employed plaintiff. evening as a truckdriver the On the 11, 1982, Clure, May approximately acting p.m., at 9 while scope employment plaintiff, within the with his was operating plaintiff’s Highway truck east on 92 within the limits Shelby. of the point, At that the was wide, straight. Shelby Within the 42 feet with a was marked Plaintiff’s driver centerline but no marked travel lanes. operating rig portion of the was in the southernmost lane, of the south curb. approximately feet north rig with through Shelby, he of the collided As drove the trailer Damage to the trailer extending the tree limb across the road. corner, right top tear in the buckling included in the center and a of wheat’s causing damage resulting in the load to the trailer and the road. partially spilling onto the collision the road that at the time of The driver testified sky rain and that the was result of an earlier was wet as a that The trial court found overcast and it was dark. many occasions along of road on driver had driven this stretch May 11,1982, the of which was about night of last prior to the collision, with that the driver was familiar before the month daylight. The driver was aware night and in the the area both night He testified that on the that lined the road. trees particular prior to the collision at a the accident he saw the stop safely. While him to come to a distance sufficient to allow distance, extending at a the limb over the tree was seen safe clearly be as it was above the illumination road could not seen provided by headlamps, which were on low beam at the truck’s presented There was no evidence the time of collision. extending had the establish the limb would have been visible lights operated high truck been with the on beam.
It that the tree limb which was involved in the was established approximately 12 feet the surface collision was 6 inches above highway. approximately The trailer was 12 feet inches rig height. The evidence showed that if the had been driven centerline, occurred, closer to the the collision would not have pavement along since the tree limb to the was closer part southern plaintiff alleges finding appeal
On the trial court erred in contributorily negligent degree driver recovery. finding sufficient to bar The trial court based its familiarity road; knowledge with the driver’s driver’s trees; the location of the fact that driver had seen the tree in safely time come stop; to a the driver’s failure to have the area”; driving lights “completely illuminate the and in the operation right-hand of the vehicle on the extreme side finding road. We hold the trial court did not err in contributorily negligent to a more slight than plaintiff’s recovery. sufficient to bar *4 Since action was one the State of Nebraska Shelby, State, political a subdivision of sitting jury case was tried to the court a without after plaintiff’s duly filed had been denied claims each of
[113] 81-8,209 seq. (Reissue 1981);
et
Neb. Rev. Stat.
defendants.
§§
1983).
findings
seq. (Reissue
Neb. Rev.
23-2401 et
Stat. §§
the State Tort
proceeding
the trial court in a
of fact of
findings
will
be
jury
have the effect of
not
Claims Act
they
clearly wrong. Oldenburg v.
appeal
on
unless
are
disturbed
State,
1,
State,
Wakenight v.
(1985);
221 Neb.
must a lookout ahead . . . and to know what is in Snow, mist, front of him for a reasonable fog, distance. visibility other conditions which intervening affect are not causes but are require conditions which a driver to exercise degree of care commensurate with the circumstances. care, What determines the exercise of reasonable or the care, breach of that by must be determined case, court, circumstances of each case. In this the trial as finder fact, plaintiff’s determined that guilty driver was contributory negligence. finding
The prior was based on the knowledge of the highway through Shelby and lining of the trees There was no plaintiff’s need for proceed driver to as close as he did to edge the south highway, and thus to the adjoining trees. The driver could see the tree whose limb the vehicle struck at a sufficient safely distance to stop or swerve north, the vehicle to the plaintiff’s and while driver testified he could not overhanging limb, knew, see the by he as stated court, trial that “trees had limbs.” Under the circumstances of case, proceed along edge southernmost highway, trees, close to known when there was sufficient room proceed portion the main constituted contributory negligence. We the trial determine that court’s finding guilty contributory driver recovery in a defeat clearly supported wrong. evidence and is not judgment of the court in defendant trial favor of State is affirmed.
Affirmed. Grant, J., dissenting. disagree holding supports
I with the court’s that the evidence finding the trial court’s *6 to a to defeat
plaintiff’s recovery. height Plaintiff’s vehicle a of 12 was of feet statutory height 11 inches. The limit for trucks is feet 6 inches, provided as in Neb. Rev. 39-6,178(1) (Reissue Stat. § 1984). existing 39-6,178(2) provides While structures § changed passage exceeding need not be vehicles permit height 12 feet 6 inches in exceeding that owners of vehicles resulting damages feet inches assume risk of from an existing obstruction,” properly “overhead the trial court found a limb is not an overhead obstruction defined in the Employees statute. State were aware tree limb the limb before accident and that was a “hazard to traffic.” I that, case, person facts in believe a legal height place vehicle of where he is contributory legally entitled to be not assuming roadway provided passage is free of (except statutory for the obstructions obstructions defined in 39-6,178(2)) which damage would cause above to passing vehicles.
White, J., joins in this dissent.