O'Brien v. J.I. Case Co.
| Decision Date | 30 January 1942 |
| Docket Number | 31240. |
| Citation | 2 N.W.2d 107,140 Neb. 847 |
| Parties | O'BRIEN v. J. I. CASE CO. et al. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
1. In consideration of the medical evidence and disabilities suffered by the plaintiff, the verdict is excessive and appears to be the result of passion and prejudice, such as to require a new trial.
2. The law imposes duties on drivers of motor vehicles on public highways where automobiles are following each other. It is the duty of the driver of an automobile following another to remain at such distance as is reasonable and prudent, having regard for the speed of vehicles and the condition of the highway, and to indicate, by proper signals his intention to turn and pass the car ahead of him. It is likewise the duty of the driver of the car in front, if he desires to turn to the left, or to the right, or to stop, to indicate, by proper signals, such desire and intention. The failure of either driver to properly observe the duties placed upon him may be taken into consideration by the jury together with all other circumstances in the case, to determine the negligence of such driver or drivers, as to which one, if either, was guilty of negligence, constituting the proximate cause of the collision and resulting injuries to the plaintiff.
Under the evidence in the instant case, the question of negligence is one for the jury.
Hall Cline & Williams and Flavel A. Wright, all of Lincoln for appellants.
Max Towle, of Lincoln, and Archie O'Brien, of Grand Island, for appellee.
Heard before SIMMONS, C. J., and ROSE, EBERLY, PAINE, CARTER, MESSMORE, and YEAGER, JJ.
This is an action for damages for personal injuries received by the plaintiff while riding as a guest in an automobile, driven by her brother, which collided with an automobile, driven by an employee of the defendant corporation. Plaintiff recovered the amount of $10,000. From this verdict and judgment thereon, defendants appeal.
The occurrence of the collision and the parties involved therein are not in dispute. Plaintiff's amended petition is proper in form to state a cause of action for negligence. The pleadings are hereinafter briefly summarized:
Defendant Waite negligently and unlawfully, by applying his brakes, without proper warning or signaling of any kind, as required by law, and without due regard for life or property of others on the highway, suddenly stopped his car on the highway directly in the line of traffic to assist two women hitchhikers, causing the automobile in which plaintiff was riding to hit the rear end of defendant driver's car. Further, the defendant driver failed to have his car under proper control. Defendants' answer contained a general denial and affirmative allegations of negligence as against the driver of the car in which plaintiff was riding, and that any damages sustained by the plaintiff were caused directly and proximately by the driver of such car in operating it at a rate of speed greater than was reasonable and proper under the circumstances, in failing to keep a proper lookout, and in not seeing the car which he was following, or, if he did see it, in disregarding such knowledge and failing to reduce his speed to avoid running into the car ahead of him, and in failing to turn to the left or right to avoid a collision. The answer contains a further charge of contributory negligence in that the plaintiff failed to keep a proper lookout and to warn the driver of his negligence. The reply was a general denial. The record reflects the following:
The plaintiff, a young lady, 27 years of age, a competent employee of the Lincoln Telephone and Telegraph Company, left Lincoln at about 3:30 p. m. on August 19, 1939, in a Chevrolet automobile, operated by her brother, James J. O'Brien, for Norfolk, Nebraska, to visit a sister. O'Brien was driving at a speed of not to exceed 45 miles an hour till he reached the place of the accident, which was about 20 miles distant from Lincoln, three miles north of Ceresco, and approximately nine miles south of Wahoo. Just prior to the accident they passed two cars. O'Brien first saw the Waite car, some distance ahead of him, when three-fourths of a mile to a mile south of the place of collision. Standing near an intersection, 90 to 100 feet south of that point, were two young ladies, seeking a ride to Mead. The defendant driver, operating a 1939 Plymouth coupe, noticed the girls when he was approximately one-fourth of a mile south of the intersection. The width of the oil mat at the scene of the accident is 27 feet; the distance from the middle of the intersection, three miles north of Ceresco, to the top of the hill south is 975 feet, and from the middle of the intersection to the top of the hill to the north 1,280 feet. A No. 77 highway sign is 113 feet south of the intersection from the middle thereof. The grade to the south is practically level for approximately 900 feet; then slopes to the south and down over the top of the hill for 200 feet where it is fairly level, then rises to the north.
The defendant driver testified that, as he came over the crest of the small hill south of the intersection, he took his foot off the accelerator; the girls waved; his car was coasting as he approached the intersection; he then applied his brakes "just a little bit and slowed down to probably 20 miles an hour," stopping somewhere near the No. 77 highway sign on the east side of the road, and then came to a complete stop, with the front end of his car "a little farther over than the back end of the car, and the right front wheel was down off on to the rough part of the slab;" that there was sufficient room on his left to permit a car to pass; that as he stopped he turned around and "looked back to see what the girls were doing;" that he saw a car approaching at a distance of from 50 to 75 feet away and he heard the sound of the brakes at the same time; that he shut his eyes; there was a sudden impact, and his car was knocked to the north of the highway into a ditch, facing east. The O'Brien car had been following the defendant driver for at least a mile at a distance of 50 to 100 feet behind him. When the defendant driver stopped, the plaintiff's brother applied the brakes of the Chevrolet, turned to the left in an attempt to avoid a collision, but was unable to accomplish his purpose.
O'Brien testified that he noticed the girls when he was 100 to 300 feet south of the intersection; that they were indicating they wanted a ride; that the point of impact when the two cars collided was 40 to 50 feet north of the No. 77 sign and approximately 140 to 160 feet north of the intersection; that defendant driver, without putting out his hand or signaling that he was going to stop, slammed on his brakes and stopped suddenly, directly in the line of traffic, in front of the O'Brien car; that he gave no signals from his lights. The speed of the two cars remained about the same until the defendant driver's car stopped and O'Brien applied the brakes on his car. After the accident the plaintiff was removed to a hospital in Wahoo, and her brother remained at the scene of the accident to clear the highway.
The testimony of the two girls corroborated the defendant driver to a marked extent, with some variation...
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