*1 848 exceptions appears

No bill to have been filed Dry this The rule court. is stated in den & v. Jensen 629, Neb. Mach, 35 N. W. 2d as follows: “Where exceptions contains no authentic record bill exceptions quashed, question has been bill no considered, the will be sarily determination of which neces an examination involves of the evidence adduced plead court, in such situation, trial if the ings support judgment, are sufficient to be will appeal affirmed.” raised can only by exceptions. resolved reference a bill of Con assignments sequently, the of error are not established by the record before us. complaint charge is sufficient offense for imposed

which defendant was convicted. sentence prescribed is within the limits the ordinance under Consequently, case which the was commenced. proceedings held in the district error affirmatively court Under

shown. such circumstances the judgment district court must be affirmed.

Affirmed. Margaret Heeney, Administratrix Estate Raymond Lloyd Heeney, deceased, appellant, appellee.

Churchill, W. 2d 50 N.

Filed November 1951. No. 32988. *2 Ryan, George Mark J. E. Mc- Learner, W. and Charles appellant. Dermott, for Harper, Gleysteen Warner,

Warner & Nelson, & and Woolery, appellee. Charles N. for Heard before Simmons, J., Carter, C. Messmore, Yeager, Chappell, Wenke, Boslaugh, JJ.

Messmore, J. brought Margaret by Heeney,

This is an action at law Raymond Heeney, administratrix of the estate de- plaintiff, against Lloyd as ceased, Churchill, defendant, damages alleged wrongful to recover for the death decedent. The case was tried to a re- sulting in a verdict favor Plain- defendant. tiff filed motion new trial. From the order over- ruling plaintiff appeals. the motion, Raymond Heeney

For convenience we will refer to appellant Margaret Heeney as deceased, as plaintiff, appellee Lloyd and the Churchill as the fendant. pleadings, necessary insofar as consider in this

appeal, plaintiff’s petition alleged are as follows: substance that defendant drove his automobile negligent manner, in a reckless and at an excessive rate question, keeping speed along road without stop proper lookout to enable him to his automobile defendant, and that the view, within his alleged, proximate cause of was the direct and death of the deceased. general denial. answer is in effect a defendant’s alleges keep proper

Although the deceased did presence on the the defendant of his lookout and warn position highway, placed himself in where ordinary care, be seen not, exercise of allegation therein defendant, there is no affirmative contributory negligence. charging the deceased with lives about record discloses that August of Hubbard. On miles northwest 2% in the daughter, evening to a ladies wife, and went he, approximately party 7 miles southwest Dose’s, at club coupe. The defendant drove his Ford of Hubbard. They stayed midnight left Dose’s, lunch, and at had a family Marion The defendant and his followed for home. stop- family into Hubbard where Grove Grove ped . out the car. The his wife’s folks let *3 proceeded The his home. on Grove and toward went headlights working. taillight To on his car were

and . go north of took the road home the defendant to his smooth. This road road and is Hubbard is a dirt straight goes Hubbard, mile then north for half a out of proceeds it turns 40 when west, and about rods turns north gradual again. the road west. There rise in rounding north there is a corner. the road turns Where rounding proceeding the road is north, the curve After estimated witnesses for a distrance level or flat length being from the to 50 60 feet the of a car or from slopes north. to The road down the where the hill. of brow There are the the curve east of trees and shrubs side of on the east north, thereof, and west road turns slopes north. the to road that the upgrade proceeded to turn he defendant, after The speed traveling of 20 miles of at a rate was north, right right right, her his and to to was seated His wife hour. daughter. the on His car was their seated was pro- As the the road. center of the side lights ceeded around the corner the car would show across the road upward. to the west bank and de- The necessary fendant testified it would be round top curve at the lights hill before the would shine right down hill to the north on of the side road. object standing saw or man doing down he as made the turn but in so north, “bump” he running something. felt a such as if over bump After he hit the road he drove and 20 feet stop. came to a wife him His asked what it was. He did object any migiit know con- have come in tact with his car. He drove down to the bottom of the hill and turned around and came On back. his return body lying he saw a man’s He road. drove to body west side a distance of and about feet from got flashlight out of his He and had a with him car. body. approximately flashed it on the feet were grade one foot road, east of the and head body was to the west. All of the was east center right body line of the side road. The its on facing south. The defendant then Hub- drove toward gone approximately bard had mile a half when stopped met Grove and him. Grove the road bridge north of Hubbard near a at that time. The somebody, told he had fendant Grove run over go sheriff, asked Grove to back to Hubbard call the which he did.

The sheriff the accident arrived at the scene of about a. m. his wife there. defendant and were parked on the west defendant’s car to the north parked side of well over to the road. The sheriff body, west of and close road, side south body lights car. He and he *4 The defendant had a conversation with the defendant. something the road, and further said he struck thought proceeded it was he the the more he road down peculiar. hill and He to the bottom the went back it was. and went to see what body 2 to the was testified that The defendant past top 20 feet hill 15 or north, over the the feet slope. lying The of the curve, the on the north side body 30 feet Grove testified that the witness you get going after north from the corner of the road body the testified the of the hill. The sheriff brow top hill, of the and of the 50 to 60 feet north body the plaintiff’s placed 40 or 50 feet from the the son curve. you proceed around the sheriff testified against lights your to the the road shine north,

corner upwards. trees and brush at There are and west bank to see difficult road, would corner of through night. road at the corner of the the trees at Hogan Homer. fair at to the witness Bill had been standing the road where met the defendant He body stopped lying. 15 feet south car 10 to He his lights body by body, could see of the get said The defendant of his car. He out car. did body light Hogan flashed a on someone. had hit Heeney. Raymond body He it as the and identified body part run over. had been not tell what flagged body him the defendant before He seen had right up flashlight. side of He came down with you. go he testified corner, and around the the road as parked lights up picked car of the right body side of feet north of 15was which the road. along finding some tracks testified to The sheriff approximate body at an the road south of side di- led in the These tracks 20 feet. of 15 to distance any- body. notice did not The sheriff rection of dragged body thing had been indicate rolled. dressed father was that his testified son light shirt and blue work overalls, and wore

in blue cap. Hub- lived northwest the deceased *5 August bard. On 21, 1947, the deceased and his wife They in were Hubbard. intended to return home to- gether. daughter, waited for their a school girl, attending who was Upon the fair at Homer. her return to daughter Hubbard' the mother and left for family home in the car. The deceased had often walked caught home go ride, and did not with them. He was apparently way on his home when the accident occurred.

Raymond Heeney, son, deceased’s had talked to his morning August father the just 21, 1947, before leav- ing for Omaha. He returned to Hubbard at about 10 p. m. He saw his father about 10:30, and talked to him again. Wednesday On after his father was killed he talked to the defendant at the defendant’s home. He asked the defendant if he could tell how the accident happened. “coming along Defendant said he was about something 15 to 20 miles an hour he felt hit the car.” grain day He had hauled over that road that and knew bumps there were no he felt the there that he hit, could so when bump went to bottom hill, around, went back and found the deceased the road. n The defendant made tests to determine how much Sitting looking he could see from his car. in his car over the end front of it he would have to look 16 feet pick object up approximately an 8 inches off the ground, indicating that there a distance of 16 feet in front of the car where he could not see the road. Like- looking right-hand a test made wise side with object directly reference to an in the road There a distance front of car. of 23 feet object you back toward the car road object nothing road, is, in the 8 or 10 inches high. discussing plaintiff’s assignments

Before of error following upon prop- which the trial court note the we jury: pedestrian erly duties of a instructed operator highway using public of a motor ve- using reciprocal. pedestrian, hide the same are A though legal right highway, he has is to walk safety. required also to use reasonable care his own using highway of a driver motor vehicle legal rights required exercise of to exercise due safety might reasonably care for the be- of others who expected highway. likewise on the Such driver is *6 using required may anticipate pedestrians to be protect any highway and to use due care and such who may using Lumber See, it. v. Anoka-Butte Johnson Floyd 114; Edwards, 150 Co., 851, 141 Neb. 5 N. W. v. 2d 555. Neb. 33 2d 41, N. W. failing plaintiff in the trial court erred contends adequately to

to instruct as duties operate as the road so to fendant to observe the rules of stop the manner that he vehicle in such motor lighted by lights of his auto- same the area within striking law- deceased who was mobile and avoid support fully using highway. of this contention In Blomquist, of Roth v. the cases relies on 1473; v. R. Cotten 58 A. L. 572, N. W. 117 220 444, Neb. v. 148 Stolley, Clark, Allen 855, 384; 248 W. 124 Neb. N. 439. N. 2d Neb. 28 W. supra, a Blomquist, held: “As this court

In v. Roth negligence a general a matter law. as it rule is highway on a so fast automobile to drive an motorist stop collision time to avoid a night in cannot that he at lighted by lamps.” In object the area an within with applicable to the facts a opinion, “When said: is recovery precluding negligence a itself violation * * recognized exceptions has been The rule with v. See, Fulcher announced. first it was since followed cited there 610, and cases 2d N. W. 418, 6 Neb. Ike, George, 2d 340, 31 N. W. 149 Neb. p. v. 423; Buresh N. 2d 625. 29 W. Neb. Jensen, v. 106; Pierson supra, “It would court said: this Ike, In Fulcher exceptions, general rule with appear, therefore, matter law as it is provides that for a motorist to drive an high- automobile so fast on a way night stop at cannot time avoid a col- object lighted lision with lamps within the area on the automobile, exceptions should embrace in the all may situations where reasonable minds on differ operator of whether or not the of the automo- prudence bile exercised the required care, caution and reasonably prudent careful, person cautious and particular under the circumstances situation.” The facts in the instant case disclose that the defend- driving upgrade ant speed his car west at a 20of speed an hour miles and did not increase his when he highway proceed downgrade. north making In turn north there is a flat surface estimated length length from the of a car to 50 or 60 feet. Along going the north side of the road trees, west are bushes, brush, and also at the turn the north, highway slopes on the east side where the road wearing to the north. The downward deceased was light cap. overalls, shirt, blue blue work and a defendant did not the deceased until after he felt a *7 bump, body lying around, back, came the saw highway. The on the evidence does not disclose whether walking along highway the the was defendant or was bump at the down the time defendant felt a ifas object. body some his car has struck The was over testimony There a of the hill. is variance in the the crest just top north of the of as to distance the the what hill lying, body heretofore set out in the was as evidence. plaintiff the the contended that It is defendant speed rate of and that he drove at an excessive was range stop the of his vision. within There is unable to conclusion in this the to sustain record. no evidence speed defendant’s rate car was 20 The maximum upgrade,.-and ascending the in- was not an hour miles certainly speed, not excessive was This but creased. speed under the circumstances. rate The reasonable a negligence you a car so to drive fast that it is rule you stop the it within distance can is based cannot speed implies. that such a The the reckless situation although application has for, correct, rule contended defendant, The facts before us. the any, predicated theory. other must on some if

The of whether the defendant have should deceased, and the inferences to be from seen the drawn are evidence adduced matters evidence which only question properly jury must de- decide. negligent whether the defendant terminable was was failing in time to the acci- to see deceased avoid supra. Anoka-Butte v. Lumber Co., See Johnson dent. jury instructed the with reference to trial court rounding defendant, turn, or made not whether seeing, degree exercising his sense of and was use of ordinary prudence persons of ordi- would of care that narily the circumstances. issue exercise under was jury presented as to whether not the proper keeping lookout and had his automobile was under circumstances. control under supra, Floyd pedes- Edwards, a case wherein a In clothing walking along the in dark was dressed trian ap- night highway at and was struck automobile alleged plaintiff’s petition proaching rear, the rule set forth in Roth v. with accordance facts supra. Blomquist, also and re- offered rule, in accordance with the quested instructions This court refused. held court the trial negligent law, matter of that the not was fendant exceptions brought rule, within the case required to the issues submit court therefore any, negligence, alleged if driver’s on the its determination. foregoing au- light cited evidence

In the guilty of thorities, negligence we conclude brought law, and case was matter of as a exceptions *8 require submis- rule within alleged negligence to of the driver’s issue of the sion jury. plaintiff’s contention cannot be sustained. plaintiff assigns as error the failure court to instruct the under the rule that where there are eyewitnesses no and no direct evidence of the accident causing injury, may the facts and circumstances proved by presumption circumstantial evidence, and self-preservation is raised the instinct of on behalf guilty contributory of the deceased that he was not negligence, but was exercise due care and cau- safety, contrary tion for his own unless the is shown. presumption arising of due care out the na self-preservation tural instinct of evidence, is not but only a mere rule of law, and obtains absence justifying direct or circumstantial evidence reasonable way upon subject. inferences one or another When produced presumption disappears such evidence is Eggeling Chicago, and is not entitled to be considered. Ry. R. I. 229, & P. Co., 119Neb. See, also, 228 N. W. 361. Anderson v. Nincehelser, Neb. 857, 43 N. 2dW. rehearing, Neb. 44 W. 2d 518. The trial N. contended, prejudicial court not commit did error as plaintiff. plaintiff’s assignments

We have examined the other- they of error and conclude are without merit. given opinion, judgment

For the reasons in this entered on the verdict is affirmed. Affirmed. J., concurring.

Chappell, propositions appearing I find fault with of law opinion agree with the result, but believe that disposition assignment of the last of error could have predicated upon ground. been another evidently In this case the trial court concluded either affirmatively pleaded that defendant had not contribu- tory negligence decedent, that there ultimately support properly no evidence to if such issue pleaded. given by Therefore, no instruction was upon contributory negligence. trial court *9 plaintiff the failure In that situation had benefit only complain. The and cannot submit such issue negligence alleged issue submitted proximately the accident or it caused and whether not resulting death. say appears logical there .can case It such necessity giving it was be no an instruction guilty presumed not decedent was prejudicial because error, in order to avoid negligent an issue whether was never he was give jury. such Thus, the failure to submitted to the prejudicial presumptive error instruction could not be ultimately place in the issues as because had no submitted. joins concurring opinion. in this J.,

Wenke, Henry error, State Schacht, error.

Nebraska, N. 2d 78 50 W.

Filed November 1951. No. 33009.