Carman v. Hartnett, 33850

• Decision Date: 13 January 1956
• Docket Number: No. 33850,33850
• Citation: 161 Neb. 576,74 N.W.2d 352
• Parties: Joseph CARMAN, Appellant, v. Margaret HARTNETT and Daniel Hartnett, Appellees.
• Court: Nebraska Supreme Court

Page 352

74 N.W.2d 352

161 Neb. 576

Joseph CARMAN, Appellant, v. Margaret HARTNETT and Daniel Hartnett, Appellees.

No. 33850.

Supreme Court of Nebraska.

Jan. 13, 1956.

Syllabus by the Court.

1. In an action to recover damages caused by alleged negligence, the burden of proof is on the plaintiff to prove defendant's negligence and that such negligence was the proximate cause of the injury of which complaint is made.

2. Every pedestrian crossing a highway within a business or residence district at any point other than a pedestrian crossing, crosswalk, or intersection is required by section 39-751, R.R.S.1943, to yield the right-of-way to vehicles upon the highway.

3. One who crosses a street at any point other than a pedestrian crossing, crosswalk, or intersection is required to keep a constant lookout for his own safety in all directions of anticipated danger.

4. Where a person crossing a street at a point other than a pedestrian crossing crosswalk, or intersection fails to look to his right for approaching traffic and is struck by an automobile coming from that direction, he is guilty of negligence sufficient to bar a recovery of damages as a matter of law.

Leamer & Graham, Norris G. Leamer, South Sioux City, Margolin & Goldblatt, Sioux City, Iowa, for appellant.

Mark J. Ryan, Richard E. Twohig, South Sioux City, for appellees.

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

CARTER, Justice.

This is an action for the recovery of damages for personal injuries resulting to plaintiff when he was struck by an automobile driven by the defendant Margaret Hartnett and owned by the defendant Daniel Hartnett. The trial court sustained defendants' motion for a directed verdict and plaintiff appeals.

The accident occurred on the main street of the village of Emerson, Nebraska, on June 27, 1953, at approximately 8:45 p. m. It was almost dark and the lights were on in the village. It was a warm evening and the pavement was dry. Plaintiff was riding on the right-hand side of the front seat of his automobile which was being driven by his son. The car was driven up the street from the north. Plaintiff had business to transact with the Mattison Implement Company, which was located on the east side of the street. His son stopped the car in front of and across the street from the company store and plaintiff got out on the right-hand side. Due to the fact that automobiles were parked on the west side of the street, plaintiff was approximately 10 feet from the west curb of the street when he alighted. He watched his son drive the car on south for some distance and then proceeded to cross the street for the purpose of entering the implement store. The street was from 28 to 30 feet wide at the point where plaintiff attempted to cross. The point of crossing was in the middle of the block between intersections. There was no pedestrian crosswalk where the accident occurred. The street sloped from south to north. Because of this condition, plaintiff says, he could see 2 or 3 blocks to the north and only one-quarter of a block to the south. There was no center line marked on the pavement. According to plaintiff's testimony he was standing about 5 feet from the center of the street when he alighted from his automobile.

Plaintiff testifies that before starting to cross the street he looked to the north and saw no car approaching. He then looked south and saw no traffic. He again looked north, saw nothing, and proceeded across the street. He did not again look south after starting across the street and was looking north when struck by the Hartnett automobile, which came from the south. He says he was hit 3 feet west of the center line of the street. After the accident he was lying on the pavement about 40 feet north of the place where he was struck and 2 feet east of the center of the street. Plaintiff did not see the car before the accident. He remembers nothing that occurred immediately following the accident. One witness testifies that a few minutes after the accident the Hartnett car was parked about 40 feet north of the point where plaintiff was lying on the pavement. It is not questioned that plaintiff received serious injuries to his person.

The petition filed alleges the following acts of negligence on the part of Margaret Hartnett, the driver of the automobile that struck the plaintiff: That the automobile was being operated in a careless and reckless manner at an excessive rate of speed with poor and improper lights in the nighttime; that she was negligent in operating said motor vehicle at a speed that was greater than reasonable and prudent under the conditions then existing, in operating a motor vehicle with insufficient lights, in failing to keep a proper lookout, in failing to have her car under control so as to stop within the area lighted by her headlights, in failing to warn of her approach,...