*1 597 Coffey, 660. 161 73 N. 2d 487, Neb. W. Dixon v. with client present Plaintiff’s not one of them. case against alleged third-party no action commenced compulsion legal approach- no tort-feasor. There Hills, Automobile Assn. v. in United Services Yet 2d 2 L. R. 3d 1422. 128, W. A. 174, Neb. 109 N. 172 plaintiff’s majority opinion is ac- holds claim legal compulsion. ground of on the tionable against splitting purpose rule cаuses protect prevent multiplicity of suits action is to Parties do not violate the a debtor harassment. reach, partial agreement they settlement rule when commencing they may action; leave contro- without litigation. part & Atchison, T. S. R.R. Co. for F. verted R. 459, Home 59 Kan. 53 P. 39 S. Co., 432, v. 504; Ins. Am. Mass. Co., York Cent. & R.R. 160 Bliss New H. Klomparens, 273 65; 36 N. E. Wolverine Ins. Co. v. affirm Mich. N. W. 724. We would the action district court. Nebraska, Otto, appellee, v. William State
appellant.
Donald for R. Meyer, Attorney General, Clarence A. H. Bernard appellee. Packett, L. *2 C. White, Carter, J., Spencer, Boslaugh,
Heard before JJ. Newton, Smith, McCown, White, C. J. a
This is criminal action which was in tried the dis- County, for trict court Lancaster Nebraska. de- guilty found motor fendant was homicide, vehicle suspended, placed proba- and he sentence was was on appeals, alleging months. He tion error in in- jury. judgment structions to the We affirm the district court. traveling Twenty-seventh
The defendant north was on approximately p.m. Lincoln, in at Nebraska, Street 6:45 February attempting on He 1968. a left-hand Twenty-seventh turn at the intersection of and W Streets police motorcycle. when he collidеd with a officer on a police George traveling officer, Mr. Welter, was Twenty-seventh south on Street at between 40 and 45 per exceeding speed miles hour. He was the limit of per sounding 35 miles hour and his siren in to dispatch informing report him that: “There is a ‘Q’ man on down 25th between TV’ Neither the family defendant nor members of his in the defendant’s automobile heard the siren or observed the officer on impact. motorcycle prior the The officer died of his injuries hospital. moments later at a local police
The defendant contends that the officer ex- ceeding speed speed limit was not within the limit exemptions enumerated in section 39-745, R. S. right-of- 1967, and that therefore did not have the way. following He therеfore contends that the instruc- imply police right- tions, which that the officer had the of-way, were error. Instruction 6 in its No. relevant portion required jury guilty find the defendant operating his аutomobile defendant was if unlawfully found that it proximate death cause and that * ** “(a.) defendant while police officer was: of the operating right-of- yield the failed to vehiсle his motor on official business way of a vehicle the driver signal sounding an audible driver was while said on said vehicle.” siren instructed “You are 11 states that: No.
Instruction department official the driver on signal by sounding siren, shall have an audible business, right-of-way, of other vehicles shall and the drivers department right-of-way yield ve- to such such however, relieve the driver not, hicle. This does regard due from the to drive with such vehicle using highway, safety persons nor it shall of all the protect operating vehicle from the driver of such highway.” arbitrary manner in use of suсh same instructed 13 states that: “You are Instruction No. police department offi- the driver of a vehicle on *3 sounding signal by has siren, an audible business, cial speed imposed right the thе to limitations exceed imposed upon duty is such driver to However, statute. operate police a manner that the said vehicle such disregard safety to of not do sо in reckless the will others.” exemptions speed
The limit are enumerated in section speed “The limitations set 39-745, R. S. 1967: Chapter apply (1) forth in article shall not to operatеd regard safety vehicles with due for the of when Patrol, others under direction of the Nebraska State any any police officer, sheriff, conservation member any police department, or officer, or other the chase persons charged apprehension of of the or of violators law (2) suspected any to fire de- violatiоn, or such with partment patrol traveling in re- or fire vehicles when (3) private sponse public or ambu- alarm, to a fire to (4) traveling emergencies, or De- lances Civil when traveling in to a fense rescue vehicles when emergency; exemption fire alarm or Provided, the here- apply exemption in shall not to bondsmen. This shall not protect any еxempted the driver of herein consequences disregard safety reckless of the of others.” purpose speed exemptions
The obvious limit emergency possible vеhicles is to make it for those agencies provide emergency who are able to services to persons persons in need to reach those as fast as reasonably possible. police department is. one agency provides which such a service. The statute narrowly not be should read so as to emasculate the pоlice emergencies by effectiveness of officers in limit speed exemptions their to situations where it is. clear suspected law has. been violated and the violator large. interpretation remains at Such would emas many culate proof the statute only because in cases could lips police come from the Clearly of the dead officer. “apprehension term of violators of the law” was de signed protect to very officer at the time when speed was of the pro essence to enforce the and law public. properly This tect the statute assumes that a performance officer on is in the of his statu tory designed give duties and is pro some measurе of dangers tection to the initial risks and he encounters in emergency gives protection during situations. It ap prehension discovery of law violators. It is not de signed prohibit appropriate officer from action necessary. when that action is It would be ab surd to hold that the intent of the statute was to' limit emergency his period subsequent action to of time apprehension discovery of a law violator during only period possessed of time when he proof activity. such criminal officer here *4 responding legitimate was to a command and order from superiors. Surely his a meaning defendant, within the of permitted the statute, should judg not be to make a opinion legal ment or to significance risk аn on of
601 enough, emergency activity. proper It is as officer’s emergency, anof case, in this that officer knew assistance, and was for which he could render effective operating in to a We find call assistance. activity pro- conducting that officer was Supp., 1967, tected under en- 39-745, section R. S. right-of-way. speed limit, titled exceed the and had only The defendant contends must a also that not emergency signal sounding a have but that such signal actually operator be must heard before required yield. interpret he is Hе asks we word “audible” as 39-752, used in section R. S. requiring hearing signal 1967, as an actual which thereby would strike down instruction No. instruct- signal’ employed that: “The term ‘audible as signal capable being thеse instructions means a heard, signal ordinary heard, a which is or in the exercise care should have been heard.” Raymond Haught,
This is the correct instruction. In v. App. Ohio 337, 143 N. E. 2d court inter рreted signal by the, audible as the instruction trial court interpreted it. “To hold that the above mentioned sec application simply tion has no because De Pew testified signal did not hear would render the statute nugatory. signal,’ ‘Audible as used Section 4511.27, adequate signal; signal capable Revised Code, means an being signal heard; which or is heard, the exercise ordinary care should have been heard.” Werner Transp. (7th Co. Cir.), Zimmerman, 201 F. 2d 687 (Ind. App.), and Clark v. Sterrett 220 N. E. 2d support also the trial court’s instruction. entering
The action of jury the district court in guilty, suspending proceedings verdict of further placing probation defendant on months, for 18 and over- ruling the motion for new trial correct and is affirmed.
Affirmed. McCown, J., dissenting. degree negligence culpability
I dissent. The *5 which, charge on a convict individual is sufficient “Ob- is difficult to define. homicide of motor rather but not breach of slight is any it viously, Delay one.” v. required to do failure whаt gross 2d 14. 156 N. W. page Neb. 509 at Brainard, 182 is that majority any' opinion clear thrust of the motor vehicle is sufficient of a operation unlawful homicide if motor vehicle operator convict not results it. This has of an individual been death of the defendant not be the law. conduct and should disregard of, reckless careless not here did establish persons. and lives of other to, rights or indifference hear an approaching emergency He did fail see and this was a had While right-of-way. vehicle which it not motor right-of-way, yield failure vehicle homicide.
Boslaugh JJ., concur in this dissent. Smith, Virginia Bobby et appellee, al., Jones Heisner, Casualty Company, appellees, Fire Protective garnishee-appellant. 2d 169 N. W. July 25,
Filed 1969. No. 37170.