1 N.W.2d 829 | Neb. | 1942
Lead Opinion
This is an action for damages because of the death of George Nichols, 63 years of age, prosecuted by Katherine Nichols, his widow, as special administratrix of his estate, against Lumir Havlat. Nichols was struck and-killed by defendant’s truck, then being operated under defendant’s direction and control, on the night of April 17, 1940, west of the city limits of Omaha, while decedent, as a pedestrian, was proceeding on and along an arterial highway known as the Q street highway. From a verdict for plaintiff in the sum of $7,000, and judgment entered thereon, and the order of the trial court overruling his motion for a new trial, the defendant appeals.
“Q street” highway, so far as involved in the accident, is comparatively straight, extending from west to east. The traveled portion thereof is paved with brick, with an 8-inch cement shoulder on either side thereof, and these together make up a roadway 18 feet in width. The roadbed is substantially level, with a slope to the west, not excessive but gradual. No permanent natural objects interfere with the view of the traveler passing over the same. On the night of April 17, 1940, the defendant was engaged in transporting 375 bushels of corn in his 1939 Chevrolet truck, with an Omaha standard trailer attached thereto, to the' town of Dorchester, Nebraska. The truck, trailer, and contents weighed approximately 31,080 pounds. The defendant had crossed the Omaha bridge, and about 10 o’clock he was approaching the intersection of Sixtieth street and Q street. The night was dark but clear; the pavement was dry. There is no evidence that atmospheric conditions were other than normal. As they approached the Sixtieth street intersection the defendant was asleep alongside the driver
And on cross-examination this witness testified: “Q. Now, then, as you traveled west from 60th you were meeting this car that was coming towards you, weren’t you? A. Yes. Q. And that was the car that interfered with your vision? A. Yes; that’s the one. Q. And how soon after this car passed you did the object loom up in the road in front of you, this Mr. Nichols? A. Just as I come abreast with this car. Q. And that was the first time you had seen Mr. Nichols? A. That was the first time. Q. And what did you do as soon as you saw him? A. Well, I slammed on the brakes and swerved sharply to the left. * * * Q. Where was the object on the pavement when you first saw it? A. Well, it was in the center of the north lane. Q. And the north lane is the lane for traffic going west? A. Yes.”
On redirect examination he testified: “Q. And you traveled a block and a half against these other lights, where you couldn’t see anything except this light? A. That’s right. Q. And when those lights passed you a block and a half west, four hundred and fifty feet under your measurement, you saw something in the road all at once, is that
And on recross-examination: “Q. But what you mean to say is that you didn’t see the man because of the lights of this other car blinding you? A. That’s right.”
As a result of the application of the brakes and the turning of the truck to the left at the moment of the collision with the deceased, as testified to by witness Belohlavy, the course of the truck was diverted from the north traffic lane into the south and then upon the south shoulder and finally overturned in what appears to be in the nature of a road ditch or borrow pit on the south of the paving. The application of the brakes also caused skid marks to appear on the paving. The north skid mark extended along the paving for the distance of 119 feet to the place it went off the paving. From this point to where the truck overturned, the evidence in the record is that the distance was 250 feet. Immediately after the accident Mr. Nichols’ dead body was found with his head and shoulders on the north edge of the pavement, and his feet and the rest of his body were out on the pavement. The evidence further discloses that the deceased had a broken arm and that his neck was broken; that his legs were both broken below the knees and one of them above the knee, and he had sustained numerous internal injuries. There is evidence in the record that the truck was traveling from 43 to 50 miles an hour at the moment of impact; but for the purpose of this appeal the most favorable evidence to defendant’s contention will be accepted as establishing the fact that the truck was then traveling from 25 to 30 miles an hour. No horn was blown from the truck at any time during the occurrence. It is also to be noted that the headlights with which this truck was equipped substantially failed to conform to the requirements of the Nebraska statutes (Comp. St. Supp. 1939, sec. 39-1176), and so far as disclosed by the record before us, the presence of this truck on our highways at the time of the accident was unlawful.
At the conclusion of all the evidence the trial court sus
Another of defendant’s witnesses testified that he was driving a Stiles passenger bus from Ralston to South Omaha over the Q street road. As he was approaching the Sixtieth street intersection he discovered a pedestrian (Nichols) some 75 feet ahead of his bus. He further testified : “Q. What was he doing, Russell, when you saw him ? A. He was urinating in the middle of the road. Q. And when did you see that he was doing the urinating? A. Approximately the time I drew abreast of him. Q. And which way was he facing at that time ? A. Southeast. Q. And can you describe to the jury what actions he was taking or doing besides the urinating at that place? A. He was standing, at a staggering standstill, sort of maneuvering around in the middle of the road while he was urinating.” And, on cross-examination: “Q. And as you came east there that night, driving that bus, and you were driving it east, of course, you had no trouble seeing Mr. Nichols out there, did you, with your lights? A. I did not; I saw him. * * * Q. And when you came up, he moved over to the north of the road, didn’t he? A. He moved— Q. No. Did he move over to the north of the road? A. Not as I came up; no. Q. Before you went by him? A. Yes. * * * Q. He moved over to the north side of the road, over toward the north curb, didn’t he? A. Yes. * * * Q.. Of course, from the time that you passed Mr. Nichols going east up to the corner you didn’t see him any more, did you? A. No. Q. The last time you did see him, however, he was going to the north side of the road, wasn’t he, as you passed him? A. Yes. Q. That would be away from the center to the north side of the road? A. Yes. Q. That would be on the west lane, to the north? A. Yes.” After witness arrived at the Sixtieth street intersection, defendant’s truck passed him and his bus going west. The evidence also disclosed
The deceased came to his death while proceeding longitudinally westward on the north half of the paved portion of Q street. This jurisdiction is committed to the rule that pedestrians have the right to use the public street at any time day or night, and, in the absence of applicable statute or ordinance limiting the same, have the right to walk longitudinally in a street or highway, and are not, as a matter of law, guilty of contributory negligence in so doing. Cotten v. Stolley, 124 Neb. 855, 248 N. W. 384; Brenning v. Remington, 136 Neb. 883, 287 N. W. 776.
It is also an established doctrine in this state that 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 an area lighted by his headlights is negligent as a matter of law. Redwelski v. Omaha & C. B. Street R. Co., 137 Neb. 681, 290 N. W. 904; Roth v. Blomquist, 117 Neb. 444, 220 N. W. 572; Cotten v. Stolley, supra; Most v. Cedar County, 126 Neb. 54, 252 N. W. 465; Hendren v. Hill, 131 Neb. 163, 267 N. W. 340; Fischer v. Megan, 138 Neb. 420, 293 N. W. 287.
On principle it appears that the existence and presence of smoke, snow, fog, mist, blinding headlights, or other similar elements which materially impair or wholly destroy visibility, are not to be deemed intervening causes, but rather as conditions which impose upon the drivers of automobiles the duty to assure the safety of the public by the exercise of a degree of care commensurate with such surrounding circumstances. Anderson v. Byrd, 133 Neb. 483, 275 N. W. 825; Fischer v. Megan, supra.
This conclusion is in harmony with the principles announced in other jurisdictions. Hammond v. Morrison, 90 N. J. Law, 15, 100 Atl. 154; Foster v. Cumberland County Power & Light Co., 116 Me. 184, 100 Atl. 833, L. R. A. 1917E, 1044; Osbun v. DeYoung, 99 N. J. Law, 204, 122 Atl. 809; Devine v. Chester, 7 N. J. Misc. 131, 144 Atl. 322; Cordts v. Vanderbilt, 7 N. J. Misc. 856, 147 Atl. 464; Meads v. Deener, 128 Cal. App. 328, 17 Pac. (2d) 198; House v. Ryder, 129 Me. 135, 150 Atl. 487; Russell v. Szczawinski, 268 Mich. 112, 255 N. W. 731; Day v. Cunningham, 125 Me. 328, 133 Atl. 855.
However, the defendant insists that the deceased was intoxicated and guilty of contributory negligence to such a degree that would prevent recovery, or at least constitute a question for the decision of a jury. It will be remembered that the “burden of proving contributory negligence, an affirmative defense, is upon the party pleading it, and must be established by a preponderance of the evidence.” Carlson v. Roberts, 133 Neb. 166, 274 N. W. 473; Cotten v. Stolley, supra.
To establish that the deceased was intoxicated, two witnesses detail certain acts and conduct, including a “stagger
“It is neither axiomatic nor knowledge common to all that men when drinking are utterly reckless of their safety or insensible to their duty to protect themselves.” 20 R. C. L. 129, sec. 107.
Intoxication itself would not prevent a recovery. Where intoxication is not a contributory cause of injury inflicted, the plaintiff may recover for all injuries he would have suffered if sober. Chicago & N. W. R. Co. v. Drake, 33 Ill. App. 114; Ward v. Chicago, St. P., M. & O. R. Co., 85 Wis. 601, 55 N. W. 771; Houston & T. C. R. Co. v. Reason, 61 Tex. 613; Meyer v. Pacific R., 40 Mo. 151.
In Cotten v. Stolley, supra, Day, J., discusses the questions substantially presented in the following language:
“Is the evidence in this case, which establishes that Alta Cotten was walking either upon the right-hand side of the pavement or upon the graveled shoulder to said pavement, proof of contributory negligence on her part? There is no presumption of contributory negligence in this case. In Engel v. Chicago, B. & Q. R. Co., 111 Neb. 21, it was held: ‘Where there is no eyewitness, no direct evidence of the accident causing the injury, the facts and circumstances may be proved by circumstantial evidence, and the pre*733 sumption is raised by the instinct of self-preservation on behalf of the deceased that he was not guilty of contributory negligence, but was in the exercise of due care and caution for his own safety, unless the contrary is shown.’ The rule applicable to this situation is stated by one authority as follows: ‘Pedestrians have the right to use a public street at any time of day or night. * * * They have a legal right to travel in the street, * * * and the mere fact that one does so, does not render him guilty of contributory negligence as a matter of law.’ 13 R. C. L. 291, sec. 242. In an annotation, 67 A. L. R. 109: ‘The rule is generally recognized that, in the absence of applicable statute or ordinance, a pedestrian has the right to walk longitudinally in a street or highway, and is not, as a matter of law, guilty of contributory negligence in doing so.’ In Hatzakorzian v. Rucker-Fuller Desk Co., 197 Cal. 82, 41 A. L. R. 1027, it is held that the common-law rule that pedestrians have a right to travel anywhere upon a public highway has not been changed in California by the legislature. And again, in Kofoid v. Beckner, 70 Cal. App. 624, it was said: ‘Notwithstanding the fact that the number of reckless drivers have rendered the paved portion of our highways a danger zone, pedestrians have a right to the use thereof, and are chargeable only with such ordinary and reasonable care for their own safety as a prudent person would ordinarily exercise.’ In Pixler v. Clemens, 195 Ia. 529, it was held that it is not contributory negligence, as a matter of law, to walk along the side of the road. There is no statutory provision in this state restricting the use of the highway by a pedestrian, and while a pedestrian walking on the highway is bound to exercise reasonable and ordinary care for his safety, one who is walking either on the right-hand edge of the pavement or on the graveled shoulder adjacent thereto is not guilty of contributory negligence as a matter of law. In 42 C. J. 1146, the rule is stated as follows: ‘In the absence of statutory restriction, a pedestrian traveling on a street or highway is not confined to the use of the sidewalk or footpath, but has a right to walk in the roadway, and is not*734 negligent as a matter of law in so doing. * * * A person walking in the roadway is bound to use ordinary care to discover approaching motor vehicles, and a failure so to do is negligence; but he is not as a matter of law negligent in failing to turn about constantly and repeatedly to observe the possible approach of vehicles from behind him, especially where there is ample room, for an automobile to pass him.’ There is no evidence of contributory negligence on the part of Alta Cotten, even if she were walking on the pavement in the line of traffic, as is contended.”
These principles thus announced in Cotten v. Stolley, supra, were expressly approved and adhered to in Brenning v. Remington, supra, and are controlling in the instant case. There is no evidence or proof as to what the deceased was doing immediately prior to the impact. When last seen alive he was proceeding along the highway where he had a right to be. No presumptions of negligence will be indulged against him, and no evidence of his contributory negligence appears in the record. The burden of presenting this proof, of course, is imposed on the defendant.
It follows that the trial court committed no error in withdrawing from the jury consideration of the question of negligence of the defendant and of contributory negligence of plaintiff’s decedent. The issue as to amount of damages allowed is not argued, in the briefs. The action taken by the district court in the trial of this case involved no substantial error, and its judgment is
Affirmed.
Dissenting Opinion
dissenting.
A dissent on my part gives- me no great pleasure since it brings me into sharp conflict with the majority opinion of my associates in whose ability, integrity and fairness I have profound faith and confidence. In cases where I am able to recognize that there is room for doubt on the matter of legal or factual interpretations and applications, I am usually willing to bow to and acquiesce in the will of the majority; also, I am prone not to insist too strenuously upon technical or precise refinement where I feel that the
I find myself unable to agree with the majority here since it is my firm conviction that the decision in this case strikes down with a single blow certain principles of law and procedure which have been considered basic and fundamental since the law concerning the use of public ways and public highways has become crystallized, and since juries have been the triers" of the facts in negligence cases.
Let it be said here that I find no fault with the statement of the case or of the facts as set out in the majority opinion. The facts which I shall set out later on herein are not contradictory and are not meant to be contradictory of those set out in the majority opinion, but are set out only for the purpose of supporting, under the issues in this case, what I conceive to be the true, existing and sound theories and principles of the law.
No good purpose would be served by restating the case and the issues here. They are sufficiently and correctly set forth in the majority opinion. The first six paragraphs of the opinion contain a statement of the case, the issues, and a partial statement of the evidence, and these paragraphs are fully adopted herein.
As stated in the majority opinion: “At the conclusion of all the evidence the trial court sustained plaintiffs motion to withdraw all questions of fact from the consideration of the jury, for the reason that the evidence then adduced showed conclusively that defendant was guilty of actionable negligence, and that it also established the fact that the plaintiff’s decedent was not guilty of contributory negligence ‘as a matter of law or fact.’ The cause was then submitted
It is the contention of the appellant that this action of the trial court was not sustained by the evidence. The action of the trial court is sustained in the majority opinion. The substance and effect of this holding is that the defendant was guilty of actionable negligence as a matter of law, and also that as a matter of law the defendant offered and adduced no competent substantial evidence on the issue of contributory negligence tendered by the answer, such as would permit submission of this question to a jury.
For the purposes of this dissent we may agree that the record discloses actionable negligence on the part of the defendant, and we may agree further that in the absence of any evidence on the issue of contributory negligence the trial court would have been required to submit only the question of damages to the jury, but I cannot agree that there is no competent substantial evidence to support the claim that the deceased was at the time of the accident guilty of negligence which contributed in some degree to the happening of the accident. . In expressing the view I take full cognizance of the rule that the burden of establishing contributory negligence rested on the defendant, and I find no fault with the rule.
Now, in affirmation of the defense of contributory negligence, what is disclosed by the bill of exceptions? In answer to this question let us first get a picture of the fixed surroundings and conditions, and the conditions on that night. The defendant’s truck was traveling westward on Q street road, the main arterial highway for traffic leaving and entering South Omaha from the west. This is a country road and not a city street. At the point of the accident the road declines to the west, not sharply but in a considerable degree. The paving with its shoulders provides a paving width of about 18 feet. The highway is quite heavily traveled. Whether or not at the time of the accident the traffic was what might be called heavy is not made clear by the record, but certain it is that there was some traffic
I call attention first to the testimony of Russell Meacham, a witness called by the defendant, the driver of a bus which was traveling eastward, which is as follows: “Q. Were you driving a Stiles passenger bus from Ralston to South Omaha about 10:00 o’clock the night of April 17th? A. Yes, sir. * * * Q. Well, now, Russell, as you came along that highway that night, driving east, before you got to 60th street did you see any one in the highway? A. Yes, sir. Q. Did you see a pedestrian in the highway? A. Yes, sir. * * * Q. How far west of the intersection of 60th and Q was the man standing in the highway? A. Approximately — this is all guessing, I can’t say for sure— I imagine it was somewhere between one hundred and one hundred and twenty-five feet. Q. West of 60th? A. Yes, sir. Q. Now, what time of night was that? A. Fifteen minutes until 10:00, to be exact. Q. And how far were you from the pedestrian when you saw him ? * * * A. Well, about seventy-five feet. Q. Did you then drive your bus on
The next witness to whose testimony attention is called is William Malverd, also a defense witness. He testified in part as follows: “Q. Were you on the highway on Q street the night of April 17, 1940, about 10:00 o’clock? A. Yes, sir. Q. And where were you standing? A. In the southwest corner on 60th and Q. Q. And were you waiting for the Ralston bus? A. Yes, sir. Q. How long had you been standing there ? A. About ten minutes. Q. Did you see any object or did you see Mr. Nichols any place on Q street while you were waiting there for that bus that night? A. Yes, sir. Q. And where did you see him first? A. Well, it was east of 60th. Q. About how far east of 60th ? A. Oh, I don’t hardly remember that, but— Q. Well, give us your best recollection. A. Around a block, I would say. Q. And how long had you waited for the bus ? * * * A. About ten minutes. Q. And part of that time you had observed Mr. Nichols, had you? A. Yes, sir. * * * Q. And which way was he walking? A. West. * * * Q. Well, did you stand there on the corner of 60th and Q waiting for a bus? A. Yes, sir. * * * Q. And which way were you facing? A. Toward the north, and looking both ways now and then. * * * Q. And you had stood on that corner watching the
On the basis of this testimony, is there evidence of negligence on the part of the deceased which contributed to the accident which caused the death, or was the trial court and is this court required to say on the record that as a matter of law deceased) was in the exercise of ordinary and reasonable care for his safety? The effect of the holding of the majority in truth is either directly that the deceased was in the exercise of ordinary and reasonable care for his own safety, and that there was no evidence of contributory negligence, or indirectly that we now have come to the point in Nebraska jurisprudence when the weighing of the evidence no longer falls within the exclusive province of the jury, but it now is a function and prerogative of the trial court to, up to some uncertain and undefined point or place, determine the sufficiency, not existence, of evidence of contributory negligence. In all earnestness and sin
Lest I be misunderstood I want to state that I make no contention that the defendant proved contributory negligence. I contend only that he adduced sufficient competent evidence of contributory negligence to require the submission of that question to a jury under proper instructions. If there had been a fair trial under proper instructions with this question submitted, and the question had been ruled on adversely to the defendant by the jury, there possibly could have been, on the record presented here, no just cause for complaint.
The question presented by this appeal is not answered by the proposition stated in the majority opinion that “This jurisdiction is committed to the rule that pedestrians have the right to use the public street at any time day or night, and, in the absence of applicable statute or ordinance limiting the same, have the right to walk longitudinally in a street or highway, and are not, as a matter of law, guilty of contributory negligence in so doing,” which proposition finds confirmation in Cotten v. Stolley, 124 Neb. 855, 248 N. W. 384, and Brenning v. Remington, 136 Neb. 883, 287 N. W. 776. This is the rule, but of what assistance is it here? It is not contended that the deceased was, as a matter of law, guilty of contributory negligence.
In the majority opinion it is stated: “It will be remembered that the ‘burden of proving contributory negligence, an affirmative defense, is upon the party pleading it, and must be established by a preponderance of the evidence.’ ” The cases of Carlson v. Roberts, 133 Neb. 166, 274 N. W. 473, and Cotten v. Stolley, supra, are cited. No fault is found with the rule here announced, but wherein does it apply in this case? As stated, contributory negligence is an affirmative defense and to be available as a defense it must be established by a preponderance of the evidence, but preponderance is not a question for the court, but exclusively for the jury.
The second is a quotation from the case of Kofoid v. Beckner, 70 Cal. App. 624, 234 Pac. 113, and is as follows: “Notwithstanding the fact that the number of reckless drivers have rendered the paved portion of our highways a danger zone, pedestrians have a right to the use thereof, and are chargeable only with such ordinary and reasonable care for their own safety as a prudent person would ordinarily exercise.” This pronouncement exacts that pedestrians
An adherence to the rules announced in this dissent would not imply a denial of recovery by plaintiff in this case. It would require only that the case should be submitted to a jury under proper instructions embodying the comparative negligence rule.