Ricker v. Danner, 33602

Decision Date04 February 1955
Docket NumberNo. 33602,33602
Citation159 Neb. 675,68 N.W.2d 338
PartiesCatherine RICKER, a minor, by and through Floyd Ricker, her father and next friend, Appellant, v. George W. DANNER et al., Appellees.
CourtNebraska Supreme Court

Syllabus by the Court.

1. The stalling of a motor vehicle on a public highway caused by the failure of its mechanism is not negligence, but a failure to use ordinary care and diligence in removing it from the highway within a reasonable time after it is possible to do so is negligence.

2. Proximate cause, as used in the law of negligence, is that cause which in a natural and continuous sequence, unbroken by an efficient intervening cause, produces the injury, and without which the injury would not have occurred.

3. An efficient intervening cause is a new and independent force which breaks the causal connection between the original wrong and the injury. The cause of an injury is that which actually produces it, while the occasion is that which provides an opportunity for the causal agencies to act.

4. An alleged cause of accident may sometimes be merely a condition and not the real cause. The activities of inanimate things are usually mere conditions and not causes.

5. If the negligence of the driver of an automobile in which plaintiff was riding as a passenger was the sole proximate cause of the collision in which plaintiff was injured he may not recover from a third person for such injury.

6. Negligence to justify a recovery of damages must have proximately caused or contributed to the injury for which compensation is sought.

7. It is a general principle, subject to exceptions not applicable to this case, that it is negligence for a motorist to drive a motor vehicle on a public highway, at any time, at a speed or in such a manner that it cannot be stopped or its course changed in time to avoid a collision with an obstruction discernible within his range of vision ahead.

Matthews, Kelley, Fitzgerald & Delehant, Martin A. Cannon, Jr., Omaha, for appellant.

Kennedy, Holland, DeLacy & Svoboda, Gross, Welch, Vinardi & Kauffman, Mecham, Stoehr, Mecham & Hills, Robinson, Hruska, Crawford, Garvey & Nye, W. P. Mueller, Omaha, for appellees.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.

BOSLAUGH, Justice.

Appellant seeks to recover damages on account of injuries inflicted on her and disability caused her by the collision of an automobile driven by her mother in which appellant was riding as a passenger with a motor vehicle owned and operated by Frank Kravchuk, and a motor vehicle owned by Lloyd J. Marti, maintained and used for family purposes, and operated by his infant son, Douglas W. Marti. Appellant claims the injuries and disability suffered by her were caused by negligence of appellees. The district court at the close of the evidence sustained the separate motion of each appellee to nonsuit appellant and dismissed the case. Her motion for new trial was denied and she prosecutes this appeal.

The cause of action alleged is: That on March 7, 1953, appellant was a passenger in an automobile driven by her mother in a southerly direction on U. S. Highway No. 6 about 2 miles northeast of Gretna in a prudent and careful manner; that vision to the south was obstructed by the crest of a hill which they were approaching; that about 300 feet south of the crest of the hill a large truck owned by George W. Danner, called Danner herein, was parked within and it entirely occupied the north-bound or east lane of the highway; that it remained in that place for more than 6 hours; that Frank Kravchuk, described herein as Kravchuk, was driving his automobile in a northerly direction on the highway south of the truck; that Douglas W. Marti, hereafter identified as Marti, was driving the automobile of his father Lloyd J. Marti which was owned and was then being used for a family purpose proceeding northward and behind the Kravchuk car; that Kravchuk, followed closely by Marti, while the vision of appellant and her mother was obscured, drove their respective cars to the left across the center line of the highway, around the Danner truck, and continued in the south-bound lane of the highway until the Kravchuk car was about 200 feet south of and in the vision of the car in which appellant was riding and thereby presented the mother of appellant with a sudden emergency at which time she applied the brakes of the car which she was operating in an attempt to avoid a collision with the Kravchuk and Marti cars; that Kravchuk drove his car onto and against the automobile in which appellant was riding on approximately the center line of the highway, and Marti drove the car he was operating onto and against the car appellant occupied near and slightly east of the center line of the highway; and that the collisions occurred about 200 feet north of the Danner truck.

That Danner was negligent in parking his truck on the paved portion of the highway when it was practical to park it on the shoulder; when by so doing he left less than 15 feet of open pavement for other vehicles; when the said vehicle was not so disabled that it could not be moved off the highway; in leaving his automobile parked in the roadway for an unreasonable length of time, for over 6 hours; and in leaving it parked unattended in the roadway near the crest of the hill without posting any warning signs, flags, or flares as required by law.

That appellees other than Danner were negligent in crossing the center line of the highway near the crest of the hill when the roadway was clearly marked with yellow lines forbidding such crossing; in driving on the lefthand side of the highway when the view was obstructed; in failing to turn back into the north-bound lane of the highway in time to avoid a collision when there was ample time to do so; in approaching the crest of the hill on the lefthand side of the road when the view was obstructed; in failing to keep a proper lookout for other vehicular traffic approaching from the north; in failing to keep the vehicles being operated under proper control; in failing to yield the right-of-way to the car in which appellant was riding and to south-bound traffic on the highway; in driving their motor vehicles from a position of safety into a position of peril without first determining that such move could be safely made; and that the negligence of appellees caused the injuries and disability of appellant and she asked judgment in a stated amount.

Appellees severally denied the allegations of negligence made against them respectively be appellant, and pleaded that the accident was proximately caused by negligence of Matilda Ricker, the driver of the automobile in which appellant was riding, and the more than slight negligence of appellant contributory to the accident.

The manner of the consideration by this court of a case in the situation of the one presented by the record herein has often been stated. Paxton v. Nichols, 157 Neb. 152, 59 N.W.2d 184.

Danner was the owner of a 1948 K-6 International semi-trailer and tractor combination truck. He was operating it in the transportation of a load of salt from Kanopolis, Kansas, to Omaha. The weight of the truck and load was slightly in excess of 20 tons. He was about 2 miles northeast of Gretna on U. S. Highway No. 6 between 9 and 10 o'clock in the forenoon March 7, 1953, starting up a hill when the truck came to an abrupt stop. He could not move it forward or backward. He attempted to put it in reverse to back it off the paved portion of the highway but could not do so because the operating mechanism would not move. He put a reflector at the rear left corner of the truck, another 100 feet north of it on the left side of the highway, and a third one 100 feet south of the truck on the right side of the highway. He did not have tools appropriate to attempt to remedy the condition that disabled the truck. He secured by telephone from Gretna a mechanic from the shop in Lincoln where the truck was frequently checked and serviced.

The mechanic and Danner found that a bearing in the pinion gear had broken. This had caused the gears to wedge together sufficiently to lock the differential and this condition made it impossible to operate or move the truck. The differential assembly was entirely removed and taken to Lincoln. The parts necessary to make the required repairs could not be secured there. Danner and the mechanic went to Omaha and finally, but not without much difficulty, secured the parts to make repair of the truck. They returned to where it was when it stalled on the highway in the forenoon, but this was sometime near 5 o'clock and the accident complained of had happened.

The differential was removed from the truck before 12 o'clock noon. Its wheels were then free and the truck could have been removed from the highway. It was then in the exact condition that it was when it was towed from the highway soon after the accident, the cause of this litigation. A tow service near but outside Omaha was called by a State Patrolman after the accident. It provided a 2-ton wrecker and the Danner truck was removed from the highway without difficulty. This could have been accomplished within an hour at any time after the differential was removed.

The Paasch farm referred to in the record was west of the highway at the place on the highway where the Danner truck stalled....

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