Bezdek v. Patrick, 34459

• Decision Date: 06 February 1959
• Docket Number: No. 34459,34459
• Citation: 94 N.W.2d 482,167 Neb. 754
• Parties: Joseph BEZDEK, Appellant, v. Kenneth PATRICK, Appellee.
• Court: Nebraska Supreme Court

Page 482

94 N.W.2d 482

167 Neb. 754

Joseph BEZDEK, Appellant, v. Kenneth PATRICK, Appellee.

No. 34459.

Supreme Court of Nebraska.

Feb. 6, 1959.

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 relieve the driver of the favored automobile of the duty to exercise ordinary care to avoid an accident.

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

3. 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 recovery by him.

4. A trial court should eliminate immaterial and superfluous matters and submit to the jury by instructions only matters properly to be decided by it in arriving at its verdict.

5. The words 'slight' and 'gross' as employed in the comparative negligence act of this state are comparative terms. The test the statute provides is not based upon absolute degrees of negligence but rather upon a comparative test of the relative degrees of negligence between the parties. The negligence of the plaintiff or defendant is not to be evaluated as slight, gross, or otherwise, standing alone. The criterion by which the degree of negligence of plaintiff is to be measured is the extent thereof by comparison with the negligence of defendant.

6. It is error for the district court to include in instructions to the jury allegations of fact made in a pleading in the cause which are without evidence tending to establish them.

7. If a defendant is guilty of negligence as a matter of law and if it can be found that the plaintiff is guilty of only slight negligence under the circumstances of the case, the issue as to whether or not the negligence of defendant is gross in comparison therewith is a factual one for determination by the jury.

8. If the driver of an automobile approaching a favored street stops, looks, and sees an approaching vehicle on the favored street but incorrectly judges its speed or distance or for some other reason believes he can safely proceed and not experience a collision, the question of whether or not his conduct in proceeding into and attempting to cross the favored street constitutes contributory negligence is generally an issue of fact for the jury to determine.

9. The requirement that the operator of an automobile stop before entering upon a favored street protected by stop signs does not grant exclusive privilege to travelers on the favored street or require those crossing it to do so at their peril, regardless of the duty of motorists on all public highways to obey traffic regulations and exercise due care to protect the rights of others.

10. If a motorist on a nonfavored street stops at an intersection with a favored street when the intersection is clear of traffic and looks for approaching vehicles acting as a reasonably prudent person in the exercise of due care would act in the belief that he has time and opportunity to safely cross, he is not liable for negligence because he attempts to do so.

11. Before one entering an intersection protected by a stop sign can be held negligent, no statutory violation being shown, it must appear that the approaching motor vehicle was at a point which, after considering its speed, indicated it was within the limit of danger and that to proceed would be imprudent.

12. In the trial of an action concerning a collision of a truck and an automobile on an intersection of a favored street and a nonfavored street 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 entering and using the intersection.

Matthews, Kelley & Stone, Martin A. Cannon, Omaha, for appellant.

Crawford, Garvey, Comstock & Nye, Omaha, for appellee.

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

BOSLAUGH, Justice.

Appellant for cause of action asserts he was on August 1, 1954, operating his automobile south on Sixtieth Street in Douglas County near the intersection of that street with L Street. He stopped at a stop sign and thereafter proceeded into the intersection. Appellee was then operating a stock truck east on L Street and was about 400 feet west of the intersection. Appellant traveled into the intersection and as he was leaving it to the south his automobile was struck with great force on its rights side by the truck of appellee. The automobile of appellant was thrown to the east and north approximately 100 feet. Thereby the person of appellant was caused severe and painful injuries resulting in permanent disability of appellant and his automobile was damaged. The collision of the vehicles, the injuries, and the damage were proximately caused by the negligence of appellee because of his failure to keep a proper lookout for traffic; failure to have his truck under control; failure to grant the right-of-way to appellant; failure to apply the brakes of his truck in time to avoid a collision which he could have done; failure to do anything to avoid a collision and the injuries and damage to appellant when he saw or should have seen appellant in a position of peril; and because he operated his truck at a dangerous and unlawful speed under the circumstances of 60 miles per hour.

The answer of appellee was a denial of the claims of appellant and a plea that the contributory negligence of appellant in a degree more than slight was the cause of the collision. Appellee also interposed a counterclaim in proper form for the damage to and the cost of necessary repairs to his truck caused and required, as appellee asserted, by the negligence of appellant consisting of his failure to yield the right-of-way to appellee, failure to have his automobile under control, failure to keep a proper lookout, failure to apply his brakes before the collision, and entering the intersection when there was an approaching vehicle near it and appellant knew or should have known that a collision would probably result. Appellee sought the dismissal of the claims of appellant and a recovery from him of the damages claimed by appellee. The reply of appellant denied the new matter in the pleading of appellee and appellant asserted that any damage alleged by appellee was the proximate result of his contributory negligence.

The result of the trial of the issues was a verdict for appellee on the cause of action alleged by appellant and for appellant on the counterclaim of appellee. The motion for a new trial made by appellant was overruled and a judgment was rendered denying any recovery to either of the parties.

Appellant drove his 1950 Studebaker automobile south on L Street to the stop sign on the west side of that street and north of Sixtieth Street. He stopped a short distance ahead of the sign. He looked east, south, and west. There was a service station west of the stop sign. He looked southwest on L Street as far as he had vision. He saw no vehicle approaching the intersection. He moved to the south an estimated distance of some 10 feet, looked to the west, and saw the truck coming toward the east on Sixtieth Street at least 350 feet west of the intersection at a location spoken of as a low place. He thought it would be safe for him to proceed into and across the intersection. He put his automobile in motion. He experienced difficulty when he attempted to shift from low gear to second gear and his efforts were unsuccessful. He was then going 3 to 5 miles per hour and was losing speed. He then put the automobile in low gear. He again looked to the west; saw the truck far enough away, he thought, to permit him to safely continue across the intersection; and he attempted to do so at a speed of 3 to 10 miles per hour. The truck of appellee collided with the automobile of appellant south and slightly west of the center of the intersection. There was debris found by a member of the Safety Patrol who investigated the accident 7 feet 5 inces south and 3 feet 3 inches west of the center point of the intersection. The truck collided with the automobile of appellant on the right side from about the front wheel back to the front part of the door. The front of the automobile was not injured.

Sixtieth Street was 18 feet wide. L Street west of the intersection was 20 feet wide and east of the west line of the intersection it was 42 feet wide. The lines of the streets at the northwest boundary of the intersection were not at a right angle. They bounded a curve which commenced 50 feet west of the point which would have been the northwest corner of the intersection if the north line of L Street had been extended east to where it would have intersected the west line of Sixtieth Street if it had been extended south and continued to a point 44 feet north of the point above mentioned to the west line of Sixtieth Street. The south wall of the service station building was 34 feet north of the north line of L Street if extended east to the west line of Sixtieth Street and the stop sign was 44 feet north of the north line of L Street. There was no obstruction to the vision of anyone traveling east on L Street towards the intersection or of any vehicle on or approaching it after the vehicle was south of the south wall of the service station. There was a highway warning sign a considerable distance west of the intersection and south of Sixtieth Street. It exhibited the words: 'Reduced Speed Zone, Congested Area.' There was a sign to reduce speed to 45 miles per hour between the first sign and the intersection. The...