This is an action for damages for personal injuries sustained by the plaintiff, Grant A. Porter, in a collision of two automobiles on Interstate 80 near the Gretna interchange, before daylight on the morning of January 4, 1977. Porter was driving his car, a Volkswagen, northeasterly when it collided with the Cadillac of the defendant, Roscoe Black, which was unoccupied, standing sideways on the highway blocking the outside eastbound traffic lane and perhaps extending somewhat into the inside lane. It had come to rest a short time earlier in that position following a skid and collision with a guardrail adjacent to the highway.
The trial judge submitted to the jury the issues of defendant Black’s negligence in the following respects: “1. He left his vehicle standing on a freeway without legal excuse. 2. He failed to provide reasonable warning to the plaintiff of the obstruction of the highway by his vehicle.” The issues on the plaintiff Porter’s contributory negligence were as follows: ‘‘1. He failed to keep a propеr lookout; 2. He failed to keep his vehicle under reasonable control; 3. He was operating his vehicle at the time of said collision at a speed excessive under all the conditions and circumstances and in violation of the statutes pertaining to speed on the interstate highway in effect at that timе.” The jury found for Black and Porter appeals. We affirm.
The principal claim of error is that the court should have submitted to the jury the issues of Black’s negligence claimed to have caused his car to skid, to wit, failure to maintain a proper lookout and failure to keep his vehicle under proper control. These allegations of negligence, which we will hereafter refer to as antecedent negligence, had been stricken from the petition before trial on motion of Black. After the
Some further reference to the pleadings and recital of the evidence is necessary to an understanding of the arguments of the parties and our holding.
At the time of the accident there was snow on the highway. Visibility was, to some extent, restricted by falling or blowing snow. Black testified that he had been traveling at a speed of about 30 miles per hour when he observed an auto approaching from the rear at a much greater rate of speed. He stated that the approaching car appeared to be fishtailing, so he moved as far to the right as he could. As the car was in the act of passing, it struck his car lightly, causing it to skid and go out of control.
After Black’s car came to rest against the guardrail, the motor was not running. After two or three unsuccessful attempts to start the motor, he observed the lights of approaching automobiles from the southwest. He then got out of the car and ran southwesterly about 75 to 100 meters along the side of the highway and waved his arms to warn approaching traffic. Two occupants of one car observed the signal and passed safely to the left without difficulty. They then stopped and began to back up for the purpose of offering assistance. The driver of that car, which according to his estimаte had been traveling at a speed of 50 to 55 miles per hour, testified that he saw the stalled vehicle before he passed Black, whom he observed waving his arms. He estimated that when he saw the stalled car he was 75 to 150 feet from it. He further testified that after he stopped his car about a “city block’’ beyond the stаlled car and while he was backing up, he saw the headlights of Porter’s car approaching. A passenger in the backing car and Black both testified that one or two other vehicles, including a truck, also passed safely. It was after that that Porter’s car collided with the standing vehicle.
Black testified that when his car came to rest after the skid, its rear touched the guardrail and its front extended into the right-hand outside eastbound lane of traffic but not at all into the left-hand eastbound lane. Porter, on the other hand, testified that it blocked part of the left-hand lane as well. He also testified that because of the slick surface of the highway he was traveling only about 35 miles per hour. Porter stated he could see a “good 150 feet’’ ahead and that there was no change in the snowstorm during the time immediately before the accident. He described the snowstorm as moderate. Porter stated he did not see Black by the side of the high way, nor Black’s car, since it was snow-covered and blended with the background. The head, tail, side, and interior lights of Black’s car were unlit. He said that on that account he could not see Black’s vehicle until he was within 15 yards of it and was unable to stop or turn aside in time to avoid the collision.
The driver of the car which passed safely and then stopped testified the lights of Black’s car were unlit. A highway patrolman testified that Black’s car was white over green in color and at the time of his investigation, some time after the collision, the automobile had snow on it. Black thought the head, tail, and side lights were lit on his car, but he was not certain. He did not claim that he had turned on the interior lights or the warning flashers.
An accident reconstruction expert called by Porter identified the items of damage done to Black’s car by the collision with the guardrail and the damage caused by the collision with Porter’s car. He could not identify any marks or damage made by a prior collision and could not give аn opinion as to whether or not such a prior accident had occurred.
The marks made by the contact with the steel-cable guardrail (which consisted of three steel cables a few inches apart attached to steel posts), were on the front and left side of the car. The expert’s opinion, bаsed upon his examinations of the two vehicles after the accident, was that the Volkswagen (Porter’s automobile) hit the Cadillac (Black’s automobile) at the left front wheel. The two cars then rotated and contact was made between the right side of
The photograph exhibits indicate severe damage to the front of the Volkswagen, the most severe damаge being on the right front. The principal damage to the Cadillac was apparently done by the collision with the Volkswagen. Damage done by the guardrail consisted of indentations or gouges corresponding to the spaces between the cables of the guardrail or the bolts on its posts. There was no testimony that the guardrail was damaged.
The petition alleged, among other things, that at the time of the collision, Black’s car was parked on the highway and that before it had come to rest across the traffic lanes, Black either lost control of his vehicle or had struck an unidentified vehicle. Porter claimed that Black’s vehicle was illegally parked on the highway in violation of the provisions of section 39-670, R. R. S. 1943. Black claimed that his car was unavoidably stalled and disabled on the highway and he thus came within the exceptions of subsection (4) of section 39-670, R. R. S. 1943.
The trial court properly instructed the jury on these claims, placing the burden of proоf on Black to show he came within the exception. See Fleischer v. Rosentrater,
The arguments of the parties focus upon the applicability of the holding of this court in Doleman v. Burandt,
Black argues that under the principle announced in Doleman v. Burandt, supra, the specifications of antecedent negligence are not submissible where his vehicle was stopped unoccupied rather than being operated at the time of the collision and, therefore, the rulings of the trial court were proper.
Porter аrgues that the principles announced in Doleman v. Burandt, supra, are unsound and, even if correct as applied to the facts of that case, are inapplicable to the evidence here.
He makes two principal points. First, he urges that the holding in Doleman v. Burandt, supra, is unsound because it characterizes a stalled automobile as a “condition” rather than a “cause” without regard to whether the reason the car is parked on the highway results from the operator’s negligence or some unavoidable reason. Secondly, he points out that subsection (4) of section 39-670, R. R. S. 1943, provides as follows: “This section shall not apply to the driver of any vehicle which is disabled while on the roadway in such manner and to such extent that it is impossible to avoid stopping and temporarily leaving such disabled vehicle in such position.” (Emphasis supplied.) Therefore, if either failure to maintain a proper lookout or failure to keep the vehicle under control was the cause of the skidding, collision with the guardrail, and stalling of Black’s car, then it was not “impossible to avoid stopping” within the purview of section 39-670 (4), R. R. S. 1943, and no legal excuse would exist for stopping. Hence, Porter contends he was entitled to have the issues of antecedent negligence submitted to the jury on the issue of whether the excеption of section 39-670 (4), R. R. S. 1943, was applicable.
The basic principles are well summarized by this court in Fincham v. Mueller,
“But, of course, negligence is never presumed. The burden of proving negligence is on the party alleging it and merely establishing that an accident happened does not prove it. Wolcott v. Drake,
There is no evidence in the record from which it may be inferred that Black failed to maintain a proper lookout, or that such failure is what caused his car to go out of control, strike the guardrail, and thus stall on the highway. To allow such an inference would be wholly conjectural. There is no evidence, direct or circumstantial, that he failed tо observe something which, had it been seen, would have avoided the skid.
This leaves the remaining allegation that Black negligently lost control of his car. That it did skid and strike the guardrail is admitted. Even if Black’s explanation be disregarded, we are left with the lone evidentiary fact that the car did skid on a somewhat slick highway. Is that alonе sufficient to support an inference that the skid was negligently caused, i.e., that Black did something or failed to do something in the management of his car which he ought, in the exercise of reasonable care, to have done?
This and many other courts have held that the mere skidding of an automobile without more does nоt prove negligence. Oakes v. Gregory,
Fincham v. Mueller, supra, was an intersection collision in which the plaintiff had to rely upon proof by circumstantial evidence because of an absence or disability of witnesses (the dead man statute). One of the circumstances was that the plaintiff’s car had skidded 17 to 18 feet before the impact. One of the allegations of contributory negligence was failure to keep the car under proper control. The court held there was no evidence to support the allegation. In Oakes v. Gregory, supra, the plaintiff was a guest passenger and, of coursе, gross negligence had to be proved. The only evidence was that the car was traveling on a snowy highway at about 20 to 25 miles per hour and, without explanation, left the highway and traveled about 12 feet, striking a tree and causing the plaintiff’s injuries. The court said: “Neither does the record disclose any act done by the drivеr of the car that even indicates that it was the result of any fault of hers. There is no evidence of any negligence on the part of the driver of the car, and necessarily no evidence of gross negligence as required by the guest statute.” (Emphasis supplied.) In Davis v. Landis Outboard Motor Co., supra, which was also a guest case, the court said: “ ‘The fact that the car of deceased gоt out of his control does not establish negligence and much less gross negligence nor does it prove the proximate cause of the accident.’ ”
Some jurisdictions have taken the view that skidding may, in and of itself, be sufficient to permit a jury to reach a conclusion of negligent loss of control. See Jones v. Carr,
In the case now before us, there is no evidence of excessive speed. Black was traveling at thе same speed or less than Porter and considerably less than the first car which passed safely. The damage to Black’s car by contact with the guardrail as shown in the photographs can be described as slight. The guardrail was apparently undamaged. None of these things indicate excessive speed and nothing whаtever about the reason for the skid. A jury could arrive at a conclusion of negligent loss of con
trol only by engaging in conjecture. There must be evidence of some fact or circumstance from wmcn an inference can be drawn that the skidding could have been prevented by the exercise of ordinary care. Oldendorf v. Eide,
Affirmed.