291 N.W. 726 | Neb. | 1940
Lead Opinion
This is an action to recover damages for the death of plaintiff’s husband resulting from the collision of two trucks on a public highway. The defendants are copartners, owners of a truck involved in the collision, and their employee, the driver of the truck. The sufficiency of the pleadings is not questioned. Plaintiff alleged that the defendants were guilty of negligence in that (1) their truck was driven into an intersection and around a blind corner at an excessive rate of speed; (2) that no signal was given while their truck was approaching or was in the intersection; (3) that the defendants’ truck was being driven on the left or wrong side of the highway at the time of the collision.
At the close of plaintiff’s case, defendants separately moved for an instructed verdict on the ground that there was no evidence to show negligence of the defendants to have been the proximate cause of the accident. This motion was sustained and a verdict directed for the defendants. Plaintiff appeals.
This situation requires an examination of the evidence.
There is no serious dispute about the following facts. The collision occurred about 9:30 a. m., June 20, 1938, upon a state highway in Gage county, Nebraska, at a point where the highway turns from a north and south course to an east and west course. A dirt highway continues to the north. The state highway is slightly curved as it makes the turn; as it approaches the curve, from the south going north, there-is a slight elevation in the grade; the roadway is banked at the turn to the southeast; and as it goes east, the highway slopes slightly into a down-grade. The highway is graveled on the traveled surface, and on the day of the accident was dry and in good condition. In the con
The apparent conflict in the testimony is as to the exact location of the two vehicles at the moment of impact and goes to the question as to whether they were on their right side of the highway. There were no eyewitnesses except the occupants of the two vehicles. Plaintiff called as her witness, Carel, a passenger in the truck and apparently a friend of the defendant Neff. He testified as to some of the facts already recited and, further, that the truck was proceeding on its right half of the highway, that in making the turn it was not more than four feet away from the bank on the south and east, that the Ford was “hugging the inside of the curve,” was on the defendants’ right side of the road, that the cars came together “head on,” and that both vehicles came to rest on the defendants’ (right) side of the highway. The damage to the left front wheels indicates that the Ford was largely to the west of the truck at the moment of the impact. At one point in his testimony, the witness Carel says the Ford after the collision was to the “north and west” of the truck and within three feet of it. Plaintiff’s other witnesses, who reached .the scene of the accident shortly thereafter, place the north and front end of the truck out into the highway, headed north and west and across the center line of the traveled portion of the highway. These same witnesses put the fragments of glass and the oil and blood spots all west of the center line of the highway.
This apparent conflict in the evidence largely disappears
Under the circumstances here presented, the plaintiff is not bound by the unfavorable statements of the witness Carel to the extent that those statements control over all other evidence offered, including Carel’s own statements.
“A party is ordinarily bound by the testimony of his own witness on thfe question of negligence, unless the circumstances or thd evidence of other witnesses would warrant the jury in disregarding the evidence of such witness.” Zimman v. Miller Hotel Co., 95 Neb. 809, 146 N. W. 1030.
“Also, if all the favorable evidence, both direct and circumstantial, produced by plaintiff fairly tends to prove the material facts necessary to make a prima facie case, the fact that there were inconsistencies or contradictions in some of
Is the evidence sufficient to make a prima facie case against the defendants?
“In reviewing a direction to the jury at the close of plaintiff’s evidence to return a verdict in favor of defendant, the appellate court will assume the existence of all material facts which competent evidence on behalf of plaintiff establishes or tends to prove and give him the benefit of proper inferences from such facts.” In re Estate of Skade, 135 Neb. 712, 283 N. W. 851.
Under the above rule, this evidence is sufficient to support a finding that the defendants’ truck was driven upon the wrong side of the road into a blind corner, where visibility was limited to 40 feet ahead, at a speed of thirty miles an hour, without the sounding of a horn, and that the Ford in which plaintiff’s husband was riding as a passenger was upon its own side of the road.
“A motorist driving at such speed that he cannot stop or turn aside in time to avoid an obstruction discernible within the range of his vision is usually negligent.” Hardung v. Sheldon, 133 Neb. 427, 275 N. W. 586. See, also, 5 Am. Jur. 652, sec. 269.
“No person shall operate a motor vehicle on any highway outside of a city or village at a rate of speed greater than is reasonable and proper, having regard for the traffic and use of the road and the condition of the road, nor at a rate of speed such as to endanger the life or limb of any person, * * Comp. St. Supp. 1939, sec. 39-1193.
“ (a) No person shall drive a vehicle on a highway at a speed greater than is reasonable and prudent under the conditions then existing, (b) The following speeds shall be prima facie lawful, but in any case when such speed would be unsafe, it shall not be lawful: (1) Twenty miles per hour in any business district; (2) Twenty-five miles per hour
“ (b) No vehicle shall, in overtaking and passing another vehicle, or at any other time, be driven to the left side' of the roadway under the following conditions: (1) When approaching the crest of a grade or upon a curve in the highway where the driver’s view along the highway is obstructed.” Comp. St. Supp. 1939, sec. 39-11,103.
“What is a reasonable speed is necessarily largely dependent on the situation and the surrounding circumstances, it being obvious that a speed which would be safe, reasonable, and proper in some places and under some circumstances might be highly dangerous, unreasonable, and improper in other places and under other circumstances.” 42 C. J. 926.
“Generally speaking, the speed at which a car may be driven around a curve in the exercise of ordinary care is less than may be required in other places. Some statutes limit the speed in going around a corner or a curve where the operator’s view is obstructed and provide that a speed in excess of that fixed shall be prima facie evidence of negligence. Other statutes require the driver to have his vehicle under control, without specifying the effect of violation of the statute. Negligence in this regard, however, is usually held to be a question for the jury.” 5 Am. Jur. 686, sec. 342.
“Every motor vehicle when operated upon a highway shall be equipped with a horn in good working order capable of emitting sound audible under normal conditions from a distance of not less than two hundred feet.” Comp. St. Supp. 1939, sec. 39-1170.
“The driver of a motor vehicle traversing defiles, canyons or mountain highways shall hold such motor vehicle under control and as near the right-hand side of the highway .as reasonably possible and upon approaching any curve where the vieiu is obstructed within a distance of two hundred feet along the highway shall give audible warning with a horn or other warning device.” Comp. St. Supp. 1939, sec. 39-1157.
These statutes require not only the installation of warning devices on motor-propelled vehicles, but that they shall be used to apprise travelers of the approach of an oncoming car. Christoffersen v. Weir, 110 Neb. 390, 193 N. W. 922,
“The duty to sound a signal of the approach of a motor vehicle depends largely on the circumstances of the particular case. A special necessity exists where the car is on the wrong side of the highway, * * * or is approaching a ■curve * * *.” 42 C. J. 917.
Defendants contend that this case is controlled by the holding of this court in Hessler v. Bellamy, 128 Neb. 571, 259 N. W. 514, where the rule is stated:
“Where undisputed physical facts demonstrate that collision out of which injuries arose was not caused by negligence of defendant, the evidence is not sufficient to support a verdict for plaintiff.
“If the evidence essential to a recovery by plaintiff is •clearly disproved by the physical facts and conditions, the trial court shall direct a verdict against him.”
With reference to the testimony as to the glass, oil and blood spots being on the west side of the road, defendants argue that this feature of the case is controlled by the reasoning in Anderson v. Interstate Transit Lines, 129 Neb. 612, 262 N. W. 445. The evidence there showed the position of the vehicles after the collision. However, in that case, “nothing in the evidence tends to reasonably identify the point of collision, with reference to the center boundary of the highway. The actual problem presented by the record in its present form is one of the resolution of forces, and we would be required to determine from the position of the two motor vehicles at the conclusion of the incident, just where they actually collided. With no evidence before us as to the weight, speed, location on the highway, or direction of movement thereon, of either truck or bus at the moment of impact, obviously this cannot be done.”
The distinction in the facts presented is obvious, for here there is positive evidence as to the movement of the truck following the impact, and evidence that “tends to reasonably identify the point of collision, with reference to the center boundary of the highway.”
The rule in the Anderson case might be applicable to the position of the Ford following the impact, for we find no evidence showing the movement of the Ford body following the impact, save the testimony as to the left front axle mark in the road.
It follows that the evidence offered was sufficient- to require a submission of the case to the jury, and that the trial court erred in sustaining defendants’ motion for a directed verdict.
Reversed and remanded.
Dissenting Opinion
dissenting.
I have hitherto followed the practice of not filing a written dissent, where I merely disagreed with the writer of an opinion upon his statement or interpretation of the facts. It has been my view that, if I was unable to convince my associates, in the consultation room, of the correctness of a factual analysis of a case, it was advisable, generally speaking, to bow to their judgment, or, at most, simply to enter on the record a notation of my dissent. Written expressions of judicial disagreement on facts ordinarily can serve no useful purpose, except to gratify a defeated litigant and his counsel. Such expressions obviously are of no value in the development of jurisprudence, and any manifestation of discord or lack of unanimity in reading and interpreting the facts of a record may only weaken public •confidence in the soundness of judicial decision. On principles of law, however, and their applicability to a particular case, I have never hesitated to make a full expression of my individual views.
It is with some reluctance and regret that I make an •exception and departure from the foregoing principles in this case. I must do so, however, or make a compromise with my conscience, which to me is impossible. The maj ority opinion seems to me to so utterly ignore the inexorable facts of the situation that I cannot let it pass unchallenged. If it were possible to have some of the photographs, which are in the record, printed in the published reports, I would not have to waste time in further discussion. Exhibits 1 .and 4 fully tell the story of the collision. To' me, they demonstrate conclusively that the vehicles met head-on as -they were rounding the curve, and that after the collision both of them were still entirely on defendant’s side of the highway. Defendant’s truck never was and never could have been on the left side of the highway. After the accident it continued to face northeast, the direction in which it had been traveling, except that it had tipped over against the hank. Some of the plaintiff’s witnesses cbnfusedly referred
The majority opinion says: “Plaintiff’s other witnesses, who reached the scene of the accident shortly thereafter, place the north and front end of the truck out into the highway, headed north and west across the center line of the traveled portion of the highway. These same witnesses put the fragments of glass, and the oil and blood spots all west of the center line of the highway.” “The picture was taken from several car lengths to the south and from a point to the west of the south-bound lane of travel. Had the picture been taken from the east side of the highway, looking directly north, it might have shown the truck headed northwest as plaintiff’s witnesses, including Carel, testify.” “If the truck were put back on its wheels in the position in which it was before tipping over, it would follow that the rear wheels of the truck would be in their lane of travel, the left front wheel of the truck would be some six or seven feet to the west of its lane of travel, the truck body would be diagonal thereto, and the front end conceivably in the lane of travel of the Ford going south.” “The damage to the left front wheels indicates that the Ford was largely to the west of the truck at the moment of the impact.” “* * * this evidence is sufficient to support a finding that the defendants’ truck was driven upon the wrong side of the road into a blind corner * * * and that the Ford in which plaintiff’s husband was riding as a passenger was upon its own side of the road.”
The photographs, as I have indicated, not only fail to substantiate these statements, but they utterly disprove them. I do not think it is proper to conjecture on what some imaginary photograph, not in the record, “might have shown.” Certain it is that the photographs in evidence do not warrant the assumption that, if the truck were put back on its wheels, its front end would be in the lane of travel of the Ford, — either “conceivably,” or any other way. It was not the left front wheels of the vehicles that collided, for' the motor and the whole front end of the Ford are
The opinion, to my. mind, is based wholly on unwarranted speculation and artificial reconstruction of the obvious physical facts.