105 Neb. 267 | Neb. | 1920
Prances J. Robison recovered a verdict and judgment against the defendant, the Troy Laundry Company, for damages for personal injuries sustained in a collision between an automobile driven by her and a motor delivery truck belonging to the defendant and operated by one of its employees.
The accident occurred at the intersection in the city of Omaha where Thirty-third street, running north and south, crosses Poppleton avenue, running east and west. Poppleton avenue does not continue directly west from its intersection with Thirty-third street, but jogs to the north. The intersection in question is therefore closed to the west by the west curb line of Thirty-third street. A space about 30 feet square, from curb to curb, is comprised in the inter
The plaintiff alleged and testified that as she entered the east side of the intersection she noticed the defendant’s truck approaching from the north at so excessive a speed and so obviously out of control that she concluded there was no way to avoid a collision, except to go directly west across the intersection, ahead of the truck, and get out of its way by forcing her car upon the park space beyond the curb line on the west side of Thirty-third stréet. She accordingly applied the power and shot across the intersection to the southwest, but was unable to get her car off the street and beyond the curb before it was struck by the defendant’s truck.
The defendant, on the contrary, in its pleading and evidence denied any unlawful speed or lack of control on the part of its truck driver, and contended that the accident was caused by the undue speed at which the plaintiff was driving when she entered the intersection, and by the fact that she gave no signal or warning, although her view to the north on Thirty-third street was obscured by a high bank at the northeast corner of the intersection. The defendant not only asked to be dismissed from any liability to the plaintiff, but counterclaimed for damages to the truck.
The controversy at the trial was waged, for the most part, upon conflicting evidence as to the speed at which the respective motor vehicles were being driven, and the record showed a decided variance in the testimony upon that point. The defendant argues, upon this appeal, that the evidence is insufficient to sustain the verdict. We are convinced, however, that there was abundant testimony which, if the jury saw fit to credit it, would justify a finding
The plaintiff, it is true, admits that she was driving toward the intersection at a speed of 12 miles an hour, and there was testimony from which the jury might have gathered that the speed of her car, going toward Thirty-third street, was as much as 25 miles an hour. The jury might have found that she was not cautious enough in reducing her speed upon entering the intersection, and that her sudden resolution to run upon the curb ahead of the defendant’s car was unwise and imprudent. If, on the other hand, we consider the evidence in the light most favorable to the plaintiff, as is the rule when it is a question of setting aside a verdict, we feel that this court would not be warranted in saying, as a matter of law, that reasonable men could have reached no, other conclusion from the evidence than that the plaintiff’s negligence alone was the proximate cause of the accident, or that her negligence, under the circumstances, was more than slight in comparison with the negligence of the truck driver, within the meaning of section 7892, Rev. St. 1913.
It was peculiarly a question for the jury, under the' comparative negligence statute, to determine whether, notwithstanding any negligence on plaintiff’s part in driving at excessive speed or failing to signal, responsibility for the collision must nevertheless be ascribed to the failure of the driver of defendant’s truck to observe any reasonable precaution; to determine whether he was, or was not, racing toward the intersection without keeping a proper lookout in the direction of Poppleton avenue, and, if he was, then to determine whether his recklessness created such an emergency as would reasonably justify the plaintiff in adopting the course that she took in the effort to avoid a collision.
The defendant contends that the record shows, in effect, a stipulation by the plaintiff to have the view and an order of the court directing it, and that it was error and an abuse of discretion for the court later to change its attitude and refuse the view. The fact that counsel for plaintiff at first consented that the jury view the locality would not, in our opinion, be binding upon the court. The granting or refusal of the request for a view was a matter resting within the sound discretion of the trial court, which could not be controlled by the stipulation of the parties. Nor do we think that the trial judge, by granting the request in the first instance, as counsel contends he did, deprived himself of the power to rescind the order, if, upon more mature reflection, a view by the jury seemed inadvisable. It was an order which, like other rulings in the course of the trial, the court had inherent power to change, being responsible for error or abuse of discretion.
Counsel for the defendant had prepared certain instructions upon the supposition that the court would direct a view, and in these the jury were told that they should find for the.defendant in case they found certain facts, “from the evidence and your view of the premises.”
These instructions were tendered in that form because, as counsel claims, he was so surprised and disconcerted by the court’s refusal to direct a view, after having apparently been inclined to grant it, that he omitted to strike out the words referring to the view. The instructions, in question, which the court refused to give, were to the effect that, if the jury believed the view of the “plaintiff’s agent and servant” was so obstructed by the high bank at the corner of the intersection that she could not see north on Thirty-third street, her omission to give any signal was a violation of the ordinances of the city of Omaha; and, if the jury believed her failure to signal was the proximate cause of the accident, they should find for the defendant.
It is contended, however, that it was the court’s duty, without any specific request, to give an instruction to the effect that the jury should find for the defendant in case they found that the proximate cause of the accident was the plaintiff’s failure to give warning signals on approaching the intersection. The éxistence of the high bank obstructing her view and her consequent duty to give signals were alleged in the answer; the contributory negligence charged against the plaintiff consisted, not only of excessive speed, but of failure to signal, yet the jury were not told to return a verdict for the defendant if they found that the plaintiff’s neglect to signal was the proximate cause of the collision. Excessive speed was the only ground of contributory negligence which the jury were informed might be a good defense.
It is the rule that, if the court omits to charge the jury upon some issue material to a cause of action or defense, its error cannot be availed of unless a request be tendered for a proper instruction upon the omitted issue. Sanford v. Craig, 52 Neb. 483. This rule has been, to some extent, qualified by the proposition that, where a request is made for an instruction which, in the form tendered, is nót a clear and satisfactory statement of the particular phase of the case which it is intended to cover, but which fairly 'reflects and calls attention to it, and is not an erroneous statement of the law, it becomes the duty of the court to give either the instruction requested or another embodying the same principle. Colgrove v. Pickett, 75 Neb. 440; Western Mattress Co. v. Ostergaard, 71 Neb. 575.
For the reasons stated, we recommend that the judgment of the court below be
Affirmed.
For the reasons stated in the foregoing opinion, the judgment of the district court is affirmed, and this opinion is adopted by and made the opinion of the court.
Affirmed.