Angstadt v. Coleman

• Decision Date: 08 May 1953
• Docket Number: No. 33254,33254
• Citation: 58 N.W.2d 507,156 Neb. 850
• Parties: ANGSTADT v. COLEMAN.
• Court: Nebraska Supreme Court

Page 507

58 N.W.2d 507

156 Neb. 850

ANGSTADT v. COLEMAN.

No. 33254.

Supreme Court of Nebraska.

May 8, 1953.

Syllabus by the Court

1. A motion for directed verdict or its equivalent must, for purpose of decision thereon, be treated as an admission of the truth of all competent evidence submitted on behalf of the party against whom the motion is directed. Such party is entitled to have every controverted fact resolved in his favor and to have the benefit of every inference that can reasonably be deduced from the evidence.

2. An extrajudicial admission appearing in the deposition of a party taken before trial is not ordinarily final and conclusive upon him, but it may be competent and admissible as evidence in contradiction and impeachment of his present claim and his other evidence given at the trial, to be given such weight as the trier of fact deems it entitled.

3. A person traveling a favored street protected by a traffic signal, of which he has knowledge, may proeprly assume that oncoming traffic will obey it.

4. A user of the highways may assume, unless and until he has warning, notice, or knowledge to the contrary, that other users of the highway will use them in a lawful manner, and until he has such warning, notice, or knowledge, he is entitled to govern his actions in accordance with such assumption.

5. A violation of the statutes regulating the use and operation of motor vehicles upon the highways is not negligence per se, but is evidence of negligence which may be taken into consideration with all the other facts and circumstances in determining whether or not negligence is established thereby.

6. An instruction which sets out a state of facts, and authorizes a verdict for one of the parties upon a finding of such facts, is erroneous, unless it includes every fact necessary to sustain a verdict in favor of such party, or unless the omitted facts are conclusively established.

7. Where the instructions as a whole clearly present to the jury the issues of fact and the law applicable thereto, harmless error in instructions separately criticized on appeal does not require a reversal of the judgment on the verdict.

Pilcher & Haney, Omaha, for appellant.

Mecham, Stoehr, Moore, Mecham & Hills, Omaha, for appellee.

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

MESSMORE, Justice.

The plaintiff Joseph Angstadt, a minor, by Warren C. Angstadt his father and next friend, brought this action in the district court for Douglas County to recover damages for personal injuries sustained by him due to the negligence of the defendant Ralph Coleman in driving his automobile in such a manner as to collide with the motor scooter driven by the plaintiff. The case was tried to a jury resulting in a verdict for the plaintiff. Judgment was entered thereon. Defendant's motion for judgment notwithstanding the verdict, or in the alternative for a new trial, was overruled. The defendant appeals.

The plaintiff's petition alleged that he was a minor 16 years of age; that about 8:45 p.m., May 13, 1950, he was driving his motor scooter west on L Street in the city of Omaha; that after completing a left turn to enter a filling station on the south side of L Street a short distance east of Forty-second Street, the defendant, who was approaching from the west in his automobile, collided with the motor scooter; and that in so doing the defendant was guilty of negligence in the following respects: (1) that he failed to keep a proper lookout; (2) that he failed to heed a red traffic signal at the intersection; (3) that he failed to slow down or stop his automobile and thus avoid the collision; and (4) that he was negligent in failing to observe the plaintiff in a position of danger and to use ordinary care in such situation to avoid the accident. The petition further set forth certain ordinances of the city of Omaha as to restrictions on speed as the same applied to the vicinity and place where the accident occurred. The petition further set forth the injuries sustained by the plaintiff; alleged the medical and hospital expenses; and prayed judgment for damages.

The defendant's answer admitted the minority of the plaintiff and the occurrence of the accident; denied generally the allegations of negligence charged to the defendant; and affirmatively alleged that the contributory negligence of the plaintiff was more than slight and was the direct and proximate cause of the accident, and sufficient to bar recovery. The reply was a general denial.

It was stipulated that the district where the accident occurred would be considered a residential district. The speed limit was 35 miles an hour.

L Street is a through highway running east and west. It is 54 feet wide where the accident occurred and provides passing, driving, and parking lanes for east and west-bound traffic. On the southeast corner of the intersection of Forty-second and L Streets is the Peers Filling Station, east of it is the Village Bar, and east of the bar is the West L Variety Store. It is 40 feet from the east curb line of Forty-second Street to the west edge of the driveway into the filling station. The filling station driveway is 47 feet wide. On each corner of the intersection of Forty-second and L Streets are traffic signals. These signals consist of a green light which indicates to proceed through the intersection, a yellow light, referred to by some witnesses as amber, to indicate caution, and a red light to indicate a stop and not to proceed through the intersection until the traffic light turns green. While there is conflict in the evidence as to whether the lights in the filling station were on or off, there is no question but that the intersection and the place where the accident occurred were well lighted.

There is much dispute in the record as to the color of the defendant's automobile. Suffice it is to say that it was a 1941 Ford V-8 four-door sedan and, it being admitted that the defendant's automobile was involved in the accident, reference to its color will be omitted.

When we refer to the intersection in the opinion, it is the intersection of Forty-second and L Streets in the city of Omaha.

While most of the witnesses testified to the position of the defendant's car and the plaintiff's motor scooter and where the plaintiff was lying immediately after the accident, we will nto set forth this testimony except that of the detective sergeant who made the official investigation.

We refer to the parties as designated in the district court.

The plaintiff testified that at the time the accident occurred he was 16 years old and a junior in South High School. On the evening of May 13, 1950, he was driving his motor scooter west on L Street at a speed of from 10 to 15 miles an hour in the driving lane for west-bound traffic. As he approached the Variety Store he turned into the passing lane, looked back over his left shoulder, and gave a signal for a left turn into Peers Filling Station. He noticed a car behind him. He looked to the west for oncoming traffic. The view to the west was clear, and the traffic lights at the intersection were amber. When he was even with the driveway of the filling station the traffic lights at the intersection turned red. He noticed two cars right at, or near, the traffic lights. He believed they would stop. One car came through the red traffic light signal. This was the defendant's car. He endeavored to avoid being struck by this car but was unable to do so. It collided with his motor scooter, striking it directly on the side. At that time he was about in the middle of the driveway, in the driving lane of east-bound traffic. The next thing he knew he was waking up at St. Catherine's Hospital.

Sergeant Manna was driving his automobile east on L Street at about 35 to 40 miles an hour. When in the block west of the intersection and within 100 feet of the traffic lights, the lights turned amber. He started to slow down, and when he was within 55 to 60 feet of the intersection the traffic lights turned red. He was in the right-hand lane. He noticed a car pull up to his left, in the left-hand lane of traffic, at an estimated rate of speed of 50 miles an hour. After passing his car, this car proceeded into the right-hand lane of traffic, through the red light. He watched it, and right after it ran through the red light he heard a crash east of Forty-second Street.

Richard Knight (Knipe) was in the front seat with Sergeant Manna. He testified that when they were about 90 feet from the intersection the traffic light was amber. When they were about 50 feet from the intersection a car passed to their left. After it passed, the traffic light turned red and this car proceeded through the intersection on the red light. He heard a crash east of the intersection.

Alma Ruth Short was riding with her brother, Master Sergeant Mullins, in his car traveling west on L Street in the driving lane. Upon approaching the intersection she saw a motor scooter traveling west. It was east of the Variety Store in the driving lane which is the north lane of west-bound traffic. They passed the scooter, and she looked back through the back window and saw the driver of the scooter give a left-turn signal into the filling station. At that time they were making a right turn to go north on Forty-second Street. She saw a car come through the intersection from the west, going east. The traffic lights for east and west-bound traffic were amber. Immediately after turning north she noticed the traffic light at the intersection turn red. She heard a noise, but did not see the impact between the car and the motor scooter. Her brother stopped the car and they went to the scene of the accident.

Sergeant Mullins testified that he was driving his car west on L Street. Between Forty-first and Forty-second Streets he saw a motor scooter in the west-bound traffic lane traveling at a speed of about 15 miles an...