299 N.W. 643 | Neb. | 1941
This is an automobile damage suit. Plaintiff, appellee, is seeking to recover for personal injuries and property damage arising out of a collision between an automobile owned and driven by plaintiff and a Studebaker one-ton truck owned by the defendants William W. Metz, Frank B. Chapin and William A. Williams, doing business as Greene’s Ice Cream Factory, and driven by the defendant Kenneth Conaway, at an intersection about one mile west of Avoca, on state highway No. 50, an arterial highway extending north and south, and a county highway extending east and west, and having stop signs. Defendants filed cross-petition for property damage to their truck. On trial there was a verdict and judgment in favor of the plaintiff and against defendants. Defendants have appealed. Appellants’ first assignment of errors relied upon for reversal is: “The court erred in failing to direct a verdict in favor of the defendants at the close of plaintiff’s case;” and, second, “The court erred in failing to direct a verdict at the close of all the evidence.” These assignments will be considered together.
The specific acts of alleged negligence charged by plaintiff against defendants in his petition, and submitted by the court to the jury, in substance, are: That the driver of said truck was not maintaining a proper lookout for those crossing said intersection; that he was driving said truck at a high and excessive rate of speed under the circumstances; and that, after seeing plaintiff in said intersection, failed and neglected to slacken the speed of said truck, but drove the said truck at high speed directly toward and against plaintiff’s automobile.
The specific acts of alleged negligence charged by defendants against plaintiff, and submitted by the court to the jury, in substance are: In failing to bring his automobile to a stop and allowing traffic upon said arterial highway to proceed without obstruction; in failing to give the defendant Conaway warning or notice of his approach; in disregarding the condition of the highway; and in failing to keep a proper
The evidence pertinent to cause of collision discloses that state highway No. 50 is an arterial highway with a graveled surface and well maintained, extending north and south a. short distance west of Avoca. On the date of the collision involved herein, a county highway with graveled surface and extending east and west intersected highway No. 50' about one mile west of Avoca. This county highway has. stop signs on both sides where it intersects the arterial highway No. 50. On.September 15, 1939, at about 3 o’clock p. m., the plaintiff, a man 55 years of age, was traveling west from Avoca on said county highway, driving his 1933 Terraplane four-door sedan. The refrigerator truck of the defendants Metz, Chapin and Williams, weighing 5,200 pounds without load, was at the same time being driven by defendant Kenneth Conaway, 24 years of age, south on highway No. 50, and was carrying about one-half load. The day was clear; the collision occurred at the intersection of said roads, the point of contact being about the center of the east and west road, and about three feet east of the west line of the traveled portion of the north and south road. Both drivers had been over the road at place of collision many times before. After' collision plaintiff’s car was in ditch at southwest corner of intersection, lying on right side, front end facing about, west; the defendants’ truck was about a quarter of a mile-south at bridge at foot of hill.
Plaintiff testified that he was a salesman of hog and poultry minerals and did culling of poultry. On the afternoon of September 15, 1939, at about 3 o’clock, he was going-from Avoca to one Moore’s, about one and one-half miles west of Avoca, traveling in a 1933 four-door Terraplane, on graveled highway to highway No. 50 one mile. “I knew there was a stop button there and there was a hill, and
Allen Paap had been over road many times. “Q. What would you say with reference to obstruction of view? A. Well, there isn’t a very good view. It isn’t very well cleared and there is more or less of a little embankment there. Q. Embankment and high weeds, were there at that time ? A. That is the way I looked at it; yes. Q. Any brush there? A. I wouldn’t say as to brush there. There had been hedge there, but the hedge was cleared.” It is about 750 to 800 feet from the intersection to the top of the hill north. It is about 30 or 35 feet from where the plaintiff’s car was lying in ditch to the center of the intersection.
H. H. Caswell, of the state safety patrol, who with Patrolman Nelson investigated accident, was called by defendants. Arrived there at around 3:45 p. m. “The first thing' we did was try to determine what had taken place as far as causing the accident was concerned and tried to find out where the impact of the accident was; that is, the spot in the intersection where the cars came together. * * * Well, we could see skid marks on the gravel road and mud that had fallen from the cars. * * * That was in the west side of the intersection. Q. At what point? * * * A. Well, in drawing a line, we measured the width of the traveled portion of the north and south road. We measured with a fifty-foot steel tape, twenty-one feet of traveled portion. Drawing a line directly through the east-west road; that is, along the west side of the north and south road through the intersection, the point of impact was three feet from where this line
Ernest Klein, called by defendants, worked on defendants’ truck. Both hydraulic brakes and mechanical brakes could not be effectively operated. Left front headlamp was damaged. “Q. Which side of this truck was damaged the most, the right or left? A. There wasn’t a lot of difference. I think the blow came mostly on the left side.”
Defendants called Charles A. Shannon, a civil engineer. Top of hill to center of intersection, elevation is 32 feet lower; from center of intersection to bridge, elevation is 45 feet lower and distance is 1,480 feet. Top of hill to bridge, total drop is 77 feet. Total distance from point on top of hill from which measurement was taken to intersection, 1,020 feet. From top of highest point of hill to intersection, distance is 850 feet. Little less than 4 per cent, grade from top of hill to intersection.
Kenneth Conaway, defendant, called as a witness by defendants: Truck is refrigerated truck, Studebaker, one-ton capacity. At time of accident one-half loaded. Was driving from 40 to 45 miles an hour approaching intersection. Truck was in perfect condition. 'T was going south from U. S. 34 there, and I wasn’t driving fast that day
William A. Williams, defendant: “The stop sign is approximately five feet, I would say, east of the north and south fence line. To see to the top of the hill I had to drive my car until the rear bumper was even with the stop sign, which would put the length of my car west of the stop sign.”
On this evidence bearing upon the question of negligence and contributory and comparative negligence the trial court submitted the case to the jury. Defendants’ principal argument is that the evidence established that the plaintiff was guilty of more than slight negligence, and that the question was, therefore, one of law for the court. There is no dispute as to that rule, if applicable under the facts in this case. That question must be considered in the light of the rule:
“A motion for a directed verdict must, for the purpose of a decision thereon, be treated as an admission of the truth of all material and relevant evidence submitted on behalf of the party against whom the motion is directed, and said 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 facts in evidence.” Moncrief v. Interstate Transit Lines, 129 Neb. 168, 261 N. W. 163.
As to what actually occurred at and immediately preceding the collision, we have no direct evidence except the testimony of the drivers of the two vehicles. Both drivers were familiar with the intersection. It would appear from plaintiff’s testimony that he stopped at stop sign; he started in low and looked up the hill to the north, looked south, and could not see any car coming; could not say “whether I was by it or just even with it.” That from where he stopped he could see north 300 to 400 feet; that he went slow to the edge of the road; let it roll up then and looked both ways; could see clear to the top of the hill from there, probably 500 or
Space will not permit a complete analysis of the evidence in this case. The evidence is conflicting, and from the facts and circumstances proved, we conclude that reasonable minds might draw different conclusions concerning any negligence or lack of negligence, as well as comparative and contributory negligence, and that the trial court did not err in submitting such issues to the jury. McDonald v. Wright, 125 Neb. 871, 252 N. W. 411.
The only remaining assignment of error is the refusal of the trial court to. give instruction No. 2, requested by the defendants. By the second paragraph of the requested instruction the court was asked to advise the jury, “That an automobile approaching an intersection from the left only has the right of way where it arrives at the intersection so far in advance of the car on its right that a reasonably pru
The first paragraph of the requested instruction sets out rule, — “Where two vehicles approach an intersection * * * at approximately the same time, the vehicle approaching from the right shall have the right of way.” That provision of the statute is applicable where intersection is not protected by “stop signs.” Under the evidence in this case such instruction was not pertinent to. question involved and was not required. The trial court did, on its own motion, give an instruction under the provisions of section 39-1036, Comp. St. Supp. 1939: “All motor vehicles entering or crossing state highways on which stop signs are erected shall come to a full stop as near the right of way line as possible, before entering- onto, such state highway, and, regardless of direction, shall give the right of way to vehicles upon said highway.” This instruction was applicable under the issues in this case, and fully protected the interests of the defendants. There was no error in the refusal of the requested instruction.
Judgment of the trial court
Affirmed.