Bell v. Crook, 34546

• Decision Date: 19 June 1959
• Docket Number: No. 34546,34546
• Citation: 74 A.L.R.2d 223,97 N.W.2d 352,168 Neb. 685
• Parties: , 74 A.L.R.2d 223 Edwin BELL, Appellee, v. William H. CROOK, Appellant.
• Court: Nebraska Supreme Court

Page 352

97 N.W.2d 352

168 Neb. 685, 74 A.L.R.2d 223

Edwin BELL, Appellee, v. William H. CROOK, Appellant.

No. 34546.

Supreme Court of Nebraska.

June 19, 1959.

Syllabus by the Court.

1. A motorist is justified in assuming that highway signs, having the appearance of regularity, were erected by proper authority.

2. If it is established that stop signs have been at a highway intersection for a considerable period of time and have been recognized by the users of the intersecting roads as designating one of them a favored highway, it will be presumed, until the contrary appears, that the signs were installed by competent officials acting upon authority of law.

3. An arterial highway is not deprived of its character or status because stop signs on an intersecting road are temporarily displaced or otherwise made invisible.

4. If a motorist knows of the through character of a highway, the presence or absence of warning signs is immaterial as respects his negligence in failing to yield the right-of-way.

5. A motorist traveling on a favored highway may assume that traffic on an intersecting secondary highway will yield the right-of-way, and the effect of his right to rely on this assumption is not lost because warning signs have been temporarily misplaced or removed.

6. The requirement in this state is that when a motorist enters an intersection of two highways he is obligated to look for approaching motor vehicles and to see those within that radius which denotes the limit of danger. If he fails to see a motor vehicle not shown to be in a favored position the presumption is that its driver will respect the right-of-way of the motorist and the question of his contributory negligence in proceeding to cross the intersection is a question for the jury.

7. All travelers are required to exercise due care in coming to and crossing an intersection of public highways.

8. The rule that the failure of the driver of an automobile upon approaching an intersection to look for vehicles approaching the same intersection, where, by looking a collision could be avoided, constitutes negligence more than slight as a matter of law and operates to defeat a recovery is subject to certain limitations. It was not intended to make a person entering a favored intersection an insurer against a collision irrespective of the negligence of the other party.

9. The driver of a motor vehicle approaching a highway protected by stop signs must stop before going upon it, look to his left and to his right, and permit vehicles to pass which are at a distance and traveling at a speed that it would be imprudent for the motorist to proceed into the intersection.

10. There is, in the absence of evidence to the contrary, a presumption that a motorist in approaching and entering a favored highway intersection acted with due care.

11. The trial court must without request charge the jury as to each issue presented by the pleadings and the evidence in the cause, including the affirmative defense of contributory negligence.

12. Each specific charge of contributory negligence pleaded and supported by proof must be by proper instruction submitted to the jury for its determination, and the failure to do so is error.

13. The restrictions of subsection (4), section 39-7,108, R.R.S.1943, include speed limitations upon the prima facie lawful speeds fixed for any highway outside of a city or village. They impose a duty to decrease speed to less than the prima facie lawful speeds when the conditions described exist and they characterize conditions by virtue of which the prima facie lawful speeds are unsafe and unlawful.

14. An instruction reciting the provisions of statutes regulating and controlling the speed of motor vehicles should include therein all material applicable statutory limitations and qualifications to enable the jury to observe and understand the duty of drivers at the time and place in question.

15. In the trial of an action concerning the collision of motor vehicles on an intersection of a favored highway and a nonfavored road which involves issues of negligence and contributory negligence, the jury should be fully and precisely instructed as to the relative and reciprocal rights and duties of the operators of the motor vehicles in approaching and crossing the intersection.

F. A. Hebenstreit, Paul P. Chaney, Falls City, Healey, Davies, Wilson & Barlow, Lincoln, for appellant.

Jean B. Cain, Falls City, C. Russell Mattson, Lincoln, for appellee.

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

BOSLAUGH, Justice.

The substance of the petition on which this cause was tried is exhibited by these statements: Appellant was on December 28, 1956, the owner of a Buick sedan automobile which was used in such a manner as to cause the owner of it to be subject to the family purpose doctrine. His son, Thomas William Crook, 18 years of age, lived in the home of his father and operated the automobile at the times important to this litigation with the permission of his father for a purpose for which it was owned by him. The son was a careless and reckless person and a careless and reckless operator of the automobile, of which appellant had knowledge, but in disregard thereof he permitted his son to have and operate it.

Appellee on that date was driving a Ford pickup truck, owned by him and his wife as joint tenants, in a proper manner southerly on a county road toward the intersection of it and an east-and-west road known as Stone Corner about 5 miles north and east of Falls City. Appellee entered the intersection. The automobile operated by Thomas William Crook traveling from the west was driven into the intersection in a careless and negligent manner and into and against the truck operated by appellee.

The north-and-south road at the place of the accident and north and south thereof was then and had been prior thereto an arterial road and was protected by stop signs erected on roads intersecting with it. Appellee and the public traveling on the north-and-south road believed that it was a favored highway protected by stop signs requiring all traffic entering it from the east and the west to stop before doing so.

The stop sign on the west of the intersection at Stone Corner was on December 28, 1956, and had been for a short time prior thereto knocked down and displaced and it was and had been in that condition without notice to or knowledge of appellee or others using the north-and-south road. It was known to Thomas William Crook before and on that date that the north-and-south road was a favored road protected by stop signs as aforesaid. He knew the stop sign on the west side of Stone Corner was displaced but he also knew that appellee and others traveling on th favored highway would assume that vehicles on the east-and-west road would stop before they or any of them would enter the intersection at Stone Corner.

The automobile operated by Thomas William Crook was not stopped before it entered the intersection and it was negligently driven against and into the truck of appellee therein. The collision of the vehicles and the injuries to and disability of appellee were caused by the negligence of Thomas William Crook which consisted of his failure: To yield the right-of-way to appellee who had first entered the intersection and was then traveling on a favored highway; to stop before he entered the intersection; to maintain a speed that was reasonable and proper under the circumstances and that was not in excess of 60 miles per hour; to have his automobile under reasonable control; to keep a proper lookout for other traffic on the highway; and to exercise care and caution in approaching and entering the intersection. Appellee because of the negligence of Thomas William Crook suffered serious injuries and permanent disability. The truck of appellee was destroyed and he asked damages from appellant in a specified amount.

Appellant by answer admitted the ownership of the Buick automobile by him and that it was on December 28, 1956, at about 1:40 p. m. operated by his son upon an east-and-west road in Richardson County; admitted the ownership of the truck as stated by appellee which he was operating at that time in a southerly direction on a north-and-south road in the named county; and admitted that the vehicles were at the time approaching an intersection about 5 miles northeast of Falls City known as Stone Corner. Appellant therein asserted that the Buick automobile entered the intersection first; that appellee carelessly and negligently drove his truck upon and against the automobile of appellant; and that the negligence of appellee, detailed in the answer, was the cause of any injuries or damages he sustained because of the collision of the vehicles.

This appeal is from the order of the trial court which denied the motion of appellant for judgment notwithstanding the verdict or, in the alternative, for a new trial.

The record contains evidence tending to establish the following matters: Appellant was on December 28, 1956, the owner of the Buick automobile involved in the accident which is the occasion of this litigation. It was owned and maintained by him for the use, benefit, convenience, and pleasure of his family. A son of appellant then lived in the family home and was 18 years of age. He was operating the automobile of his father for a family purpose for which it was owned and maintained and with the consent and knowledge of his father at the time of the accident which happened at an intersection known as Stone Corner.

The home of appellee was northeast of Barada. He was operating a Ford truck, which will be designated the truck, on a north-and-south county graveled road in a southerly direction north of its intersection with an east-and-west highway at a location known as Stone Corner about 5 miles northeast of Falls City on the afternoon of December 28, 1956. It was a clear, dry...