Barajas v. Parker, 34238

• Decision Date: 15 November 1957
• Docket Number: No. 34238,34238
• Citation: 165 Neb. 444,85 N.W.2d 894
• Parties: Victoria BARAJAS, Appellee-Cross-Appellant, v. Marie E. PARKER and Cliff R. Parker, Appellants-Cross-Appellees.
• Court: Nebraska Supreme Court

Page 894

85 N.W.2d 894

165 Neb. 444

Victoria BARAJAS, Appellee-Cross-Appellant, v. Marie E. PARKER and Cliff R. Parker, Appellants-Cross-Appellees.

No. 34238.

Supreme Court of Nebraska.

Nov. 15, 1957.

Syllabus by the Court.

1. A motorist entering an intersection from the right is in a favored position and has the right-of-way, other things being equal, but such fact does not do away with the duty of the driver of the favored automobile to exercise ordinary care to avoid an accident.

2. The failure of the driver of an automobile, upon approaching an intersection, to look in the direction from which another automobile is approaching, where, by looking, he could see and avoid the collision that resulted, is more than slight negligence, as a matter of law, and defeats a recovery.

3. It is the duty of the driver of an automobile on approaching an intersection to look for other automobiles approaching and to see those within the radius which denotes the limit of danger.

Heaton & Heaton, Sidney, Healey, Davies, Wilson & Barlow, Lincoln, for appellants.

Wright, Simmons & Harris, Scottsbluff, for appellee.

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

YEAGER, Justice.

Tis is an action for damages by Victoria Barajas, plaintiff, and appellee and cross-appellant, for personal injuries, for loss of earnings, for loss of earning capacity, and for medical, surgical, and hospital expenses sustained and which will in the future become necessary, all occasioned by the alleged negligence of Marie E. Parker while she was engaged in the operation of an automobile belonging to Cliff R. Parker which automobile came into collision with an automobile owned and operated by the plaintiff. Marie E. Parker and Cliff R. Parker are defendants and appellants and cross-appellees. A trial of the action was had to a jury at the conclusion of which a verdict was returned, in response to requests for special findings submitted by the trial court, in favor of the plaintiff. The total amount of her damages was fixed at $22,147.50.

Following the rendition of the verdict the defendants filed a motion for new trial or in the alternative for a judgment notwithstanding the verdict. They had on the trial at the conclusion of plaintiff's evidence and again at the conclusion of all of the evidence moved for a directed verdict. The plaintiff filed a motion for judgment for $22,147.50 or in the alternative for a new trial. The motion of the plaintiff for judgment for $22,147.50 was overruled. The defendants' alternative motion for judgment notwithstanding the verdict or for new trial was overruled. The findings as to damages were accepted by the court. A new trial as to negligence was granted on the motion of the plaintiff.

From this adjudication the defendants have appealed and the plaintiff has cross-appealed.

The defendants have set forth numerous alleged errors which they insist are grounds for reversal as has also the plaintiff. Whether or not any others require consideration depends upon the conclusion reached as to the defendants' third assignment of error which is as follows: 'The District Court erred in overruling Defendants' Motion for Judgment Notwithstanding the Verdict.'

The point of this assignment of error, as was also true of a point of the motions for directed verdict, was that the plaintiff herself was at the time of the collision guilty of contributory negligence which was sufficient as a matter of law to defeat a recovery of damages by her.

Before proceeding to a consideration of the merits of this assignment of error it appears well to point out that the parties have stipulated that the automobile which was being used by Marie E. Parker was owned by Cliff R. Parker and that at the time in question it was being used for a family purpose. The effect of this is to say that Cliff R. Parker was liable to respond for negligence, if any, of Marie E. Parker.

The collision took place at an intersection of two public highways in Cheyenne County, Nebraska, about 3 miles west of Dalton. The time was about 6:20 p. m. It was in daylight. The weather was good, the atmosphere was clear, and the roads were dry. The plaintiff was traveling northward and Marie E. Parker, who will be hereinafter referred to for convenience as the defendant, was traveling in an easterly direction. The two automobiles came into collision in the intersection. It appears from exhibits that the front end of defendant's automobile struck the automobile of plaintiff on its left side. Neither the plaintiff nor the defendant was able to describe the collision. A witness who was some distance to the east observed the collision but was unable to describe it with any degree of accuracy. The plaintiff was to the right of the defendant with reference to the intersection.

The plaintiff in response to questions described her acts and conduct immediately before and leading up to the collision. She testified that she had no recollection of the collision itself. The pertinent questions and answers on direct examination are as follows: 'Q. Then tell the jury what happened after that on that day? A * * * I was driving through this dirt road--short cut, they called it--and I was driving along at this certain time, and all of a sudden, everything went black. I don't remember anything after that. Q Now, the last thing you remember, were you driving? A Yes. * * * Q Now do you remember how fast you were driving? A About 45 or 50. * * * Q Now, do you know where you were, the last thing you can remember? A No, I don't. I just remember driving along, singing to myself, and then, of course, watching the road straight ahead of me, and after that I went into that blackness, and that is all.' Questions and answers on cross-examination were as follows: 'Q Now my notes state that you said you were driving about 45 or 50 miles an hour, looking straight ahead. Is that correct?...