Bergendahl v. Rabeler

• Citation: 276 N.W. 673,133 Neb. 699
• Decision Date: 17 December 1937
• Docket Number: 30188.
• Parties: BERGENDAHL v. RABELER.
• Court: Supreme Court of Nebraska

276 N.W. 673

133 Neb. 699

BERGENDAHL v. RABELER.

No. 30188.

Supreme Court of Nebraska.

December 17, 1937

Syllabus by the Court.

1. Ordinarily, the speed of an automobile is not a matter of exclusive expert knowledge and skill and any one with a knowledge of time and distance is a competent witness to give an estimate.

2. Where it appears that a witness had no reasonable time means, distance or opportunity to formulate a basis for an opinion as to the speed of a car, the testimony of such witness is insufficient to sustain a finding of excessive speed in the absence of other evidence on the subject.

3. The duty of the driver of a vehicle about to enter a street intersection to look for vehicles approaching the same intersection implies the duty to see that which was in plain sight, unless some reasonable excuse for not seeing is shown.

4. When separate and independent acts of negligence by different persons combine and produce a single injury, each participant is liable for the resulting damages, though one of them alone might not have caused the injury.

5. Where the negligence of the driver of an automobile in which plaintiff is riding as a passenger is the sole proximate cause of a collision in which plaintiff is injured, plaintiff cannot recover from a third person for such injury.

6. Although the negligence of the driver of an automobile will not ordinarily be imputed to a passenger therein when the passenger has no control over the car or driver, the passenger may not recover from a third person for injuries suffered in a collision when the negligence of the driver is the sole proximate cause of the accident.

7. Although the question of proximate cause is ordinarily for the determination of the jury, where, upon the evidence produced, only one inference can be drawn, it is for the court to declare whether a given act or series of acts is the proximate cause of the injury.

Appeal from District Court, Madison County; Chase, Judge.

Action by Otto A. Bergendahl, as father and next friend of Sonja Bergendahl, a minor, against Henry Rabeler. From a judgment overruling the defendant's motion for a new trial, the defendant appeals.

Judgment reversed, and cause dismissed.

Moyer & Moyer, of Madison, and Baylor & TouVelle and George Healey all of Lincoln, for appellant.

J. J. Harrington, of O'Neill, and Frederick M. Deutsch, of Norfolk, for appellee.

Heard before GOSS, C. J., ROSE, DAY, PAINE, CARTER, and MESSMORE, JJ., and KROGER, District Judge.

CARTER, Justice.

This action was brought by plaintiff, as the next friend of his daughter, Sonja Bergendahl, a minor, to recover damages for injuries suffered in an automobile accident. A verdict for $4,983.34 was returned by the jury and judgment entered thereon. From the overruling of his motion for a new trial, defendant appeals.

This is the second appearance of this case in this court. Bergendahl v. Rabeler, 131 Neb. 538, 268 N.W. 459, 463.All of the facts and circumstances surrounding the accident are correctly set out in the former opinion and will be considered as if a part of this opinion in our discussion of the case.

The situation may be summarized as follows: It had been customary for Otto A. Bergendahl to take his two daughters, Sonja and Lillie, to and from school. On the day of the accident he was unable to do so because of illness. He thereupon procured Kenneth Wehenkel, a neighbor boy of the age of 18 years, to drive the car. While driving south on Fifth street in the city of Norfolk, accompanied by Sonja and Lillie Bergendahl, their car collided with defendant's car in the intersection of Fifth street, and Michigan avenue, causing the injuries to Sonja Bergendahl of which complaint is made.

There is no question that the Bergendahl car was traveling south and the defendant's car east and that defendant was entitled to the right of way at the intersection. The record fully establishes the fact that the brakes on the Bergendahl car were practically useless for braking purposes.

The testimony of plaintiff's witnesses is that the Bergendahl car was traveling at a speed of 20 to 25 miles an hour before it entered the intersection and was reduced 5 to 10 miles an hour before the accident occurred. Defendant testifies that it was traveling from 30 to 35 miles an hour. Defendant testifies that his car was traveling from 10 to 12 miles an hour as it entered the intersection. The testimony of Wehenkel, Sonja and Lillie Bergendahl is to the effect that defendant was traveling from 40 to 45 miles an hour. The testimony of the three last-named witnesses is to the effect that they looked to the right before entering the intersection at a point where they could see at least 100 feet up the street and that they did not see defendant's car until a collision was imminent and that they based their judgment as to the rate of speed upon a brief glance in that direction immediately before the accident. This court has held that the speed of an automobile is not a matter of exclusive expert knowledge or skill and that any one with a knowledge of time and distance is a competent witness to give an estimate. Patterson v. Kerr, 127 Neb. 73, 254 N.W. 704; Serratore v. Miller, 130 Neb. 908, 267 N.W. 159.But it is very evident from the record that these witnesses had no reasonable time, means, distance or opportunity to formulate a basis for an opinion as to the speed of defendant's car. Such evidence is not sufficient to sustain a finding of excessive speed when it conflicts with other evidence and there is no additional testimony on the subject. The record shows that the collision occurred four or five feet south of the center of the intersection. It further appears that defendant turned his car south in an attempt to avoid the accident and that Wehenkel turned east trying to avoid the collision. It appears that the right spring horn of the Bergendahl car struck the left front wheel of the defendant's car causing the cars to crash or sideswipe each other. Defendant's car proceeded southwest to a point 12 or 14 feet south of the south line of the intersection. The Bergendahl car proceeded southeast and overturned on the sidewalk on the south line of the intersection. These facts clearly indicate that defendant's car was traveling at no greater rate of speed, if not less, than the Bergendahl car. Under this state of facts, we come to the conclusion that the evidence will not sustain a finding of excessive speed on the part of the defendant. In Showers v. A. H. Jones Co., 126 Neb. 604, 253 N.W. 902, 904, we said: " He said he was uncertain which way to travel, whether to turn south or continue east and slackened speed with the intention of turning south, but finally concluded to go east; that as he came into the intersection he slowed down to about 20 miles an hour; that he heard the truck, looked up and saw it for the first time about 15 or 20 feet to his left; that he then turned his car to the right in an attempt to avoid the collision. Osborn...