Colton v. Benes

• Decision Date: 06 March 1964
• Docket Number: No. 35427,35427
• Citation: 176 Neb. 483,126 N.W.2d 652
• Parties: C. E. COLTON, Appellant, v. Matthew BENES and Louis Benes, Appellees.
• Court: Nebraska Supreme Court

Page 652

126 N.W.2d 652

176 Neb. 483

C. E. COLTON, Appellant, v. Matthew BENES and Louis Benes, Appellees.

No. 35427.

Supreme Court of Nebraska.

March 6, 1964.

Syllabus by the Court

1. A motorist approaching a highway protected by stop signs must stop before going upon the highway, must look to his left and to his right, and must permit a

motor vehicle which is proceeding along the highway protected by stop signs to pass if it is at a distance and is traveling at a speed making it imprudent for the motorist to proceed into the intersection.

2. A motorist traveling on a favored highway protected by a stop sign of which he has knowledge may properly assume that oncoming traffic will obey it.

3. A user of highways may assume that other users thereof will use them in a lawful manner and govern his acts in accordance with such assumption unless or until he has warning, notice, or knowledge to the contrary.

4. Negligence, which is the moving or effective cause of a happening, is the proximate cause thereof.

5. The trial court is required to submit to the jury for its determination only the issues of fact presented by the pleadings and supported by evidence, and it is generally prejudicial error for the trial court to present to the jury for its determination any issue of fact for which there is no proof.

6. Although it is the duty of a driver of a motor vehicle to keep a lookout in the direction of anticipated danger he cannot be expected to maintain a constant lookout in one direction.

7. In a jury case involving issues of negligence where different minds may draw different conclusions or inferences from the evidence adduced, or if there is a conflict in the evidence, the matter at issue must be submitted to the jury, but where the evidence is undisputed or but one reasonable inference or conclusion can be drawn therefrom, the question is one of law for the court.

8. If defendant pleads that the plaintiff was guilty of contributory negligence, the burden is upon him to prove that defense and this burden does not shift during the trial. However, if the evidence adduced by the plaintiff tends to prove that issue, the defendant is entitled to receive the benefit thereof.

9. It is essential to the existence of negligence that there be some fault on the part of the person sought to be held liable.

10. It has been generally recognized that the plaintiff's duty of reasonable care to seek a cure does not require him to submit to treatment which involves substantial hazard of death or injury, nor even unduly painful treatments, and also that he need not pursue methods which offer only a possibility of cure.

11. In an action in tort for personal injuries the question of whether or not the injured party should have mitigated his damages by submitting to an operation should not be submitted to the jury in the absence of evidence showing the extent of the hazards of death or injury and of the pain or suffering involved.

12. Mitigation of damages being defensive in nature the burden of proving the plaintiff should submit to an operation to lessen his damage is upon the defendant.

John A. Wagoner, Grand Island, for appellant.

Luebs, Elson, Tracy & Huebner, Grand Island, Wear, Boland, Mullin & Walsh, Omaha, for appellees.

Heard before WHITE, C. J., CARTER, MESSMORE, SPENCER, BOSLAUGH and BROWER, JJ., and LYNCH, District Judge.

BROWER, Justice.

This action was brought by the plaintiff and appellant, C. E. Colton, against the defendants and appellees, Matthew Benes and Louis Benes, in the district court for Hall County, Nebraska, to recover damages which resulted from an automobile accident which took place at the intersection of Eddy and Division Streets in the City of Grand Island, Nebraska.

The plaintiff will be designated as such, or as Colton, and the defendants either as such or when necessary by their respective names.

The plaintiff's petition alleged that the automobile of the defendants at the time of the accident was driven by Matthew Benes; and that Matthew and Louis Benes were the joint owners thereof. It attributed negligence to the defendants in several respects among which are the following which were submitted to the jury by the court in its instructions, to wit: That the defendant driver failed to keep a proper lookout; failed to keep his vehicle under reasonable control; failed to yield the right-of-way to the plaintiff's vehicle driven on Eddy Street, an arterial street designated as such by city ordinance; and failed to give timely warning of his intention to usurp the intersection. Other allegations of negligence were stated and submitted to the jury which are not necessary to be mentioned in the absence of a cross-appeal.

The defendants' separate answers admitted the time and place of the accident and that it involved a vehicle driven by plaintiff with that of one driven by Matthew Benes. They denied any negligence on the part of the driver of defendants' automobile and alleged contributory negligence on the part of the plaintiff in several respects, including the following which were submitted to the jury: That he failed and neglected to keep a sufficient lookout; that he failed to keep his vehicle under reasonable and proper control; that upon seeing the approach of defendants' vehicle he failed and neglected to timely apply his brakes to avoid colliding with it; and that he failed to turn to the left so as to avoid the accident. The plaintiff by reply traversed these allegations of the defendants.

The trial court by its instructions submitted the issues as to the negligence of the defendants and the contributory negligence of the plaintiff with the usual instruction permitting the reduction of the amount of the verdict in case the jury should find plaintiff guilty of slight contributory negligence and the negligence of the defendants gross in comparison therewith. The jury returned a verdict for the plaintiff in the amount of $3,376.40. Plaintiff filed a motion for new trial which was overruled and he has brought the cause to this court by appeal.

The plaintiff assigns error in the giving of instructions Nos. 3, 4, and 5. These instructions are complained of because the issue of the plaintiff's contributory negligence was through them submitted to the jury. Plaintiff's first contention is that there was no evidence in the case which permitted that issue to be considered by the jury. If that contention is sustained by this court it will be unnecessary to consider the particular errors with respect to the several instructions.

To determine this assignment of error it is first necessary to review the evidence as disclosed by the bill of exceptions.

Eddy and Division Streets cross at right angles. Though both run at a considerable variance with the directions of the compass they will be treated herein as if Eddy Street ran north and south and Division Street east and west. Both streets and their intersection were paved. Eddy Street where the collision occurred was an arterial street which was protected by stop signs. Eddy Street is 37.1 feet wide to the north of the intersection. Division Street is 41 feet wide on the west thereof. There is a slight variance without significance here in the width of each street respectively on the opposite side of this intersection. Stop signs are present at the northeast and southwest of the intersection requiring vehicles on Division Street to stop before entering Eddy Street. The one at the southwest corner of the intersection is approximately 9 feet west of the west curb of Eddy Street and 5.8 feet south of the south curb of Division Street. It is 6 feet in height from the ground to the base of the octangle sign itself. The sign is similar as to size to the usual stop sign and bears white lettering upon a red background. From the photographs in evidence there appears no obstruction to impair the vision of a driver approaching it from the west on Division Street.

At approximately 11:30 o'clock on Sunday morning, September 27, 1959, the plaintiff Colton was driving his own 1950 Chevrolet panel truck, approaching this intersection from the north.

At the same time the defendant Matthew Benes was driving a 1959 Ford two-door sedan eastward on Division Street toward the same intersection. He was acccompanied by his brother Louis Benes, the other defendant, who sat to his right on the front seat. The sedan was owned by the two brothers who were partners engaged in farming operations near Chapman, Nebraska. At the time of the accident it was a nice clear day and the streets were dry.

No other automobile at that time preceded or followed either vehicle and no witness who actually saw the accident testified except the parties themselves. Their testimony is here summarized. On direct examination by his counsel the plaintiff stated that he knew as he approached the intersection that Eddy Street was an arterial highway. When he was probably a car length from the intersection he noticed an automobile, afterwards identified as belonging to the defendants, approaching from the west. It was then probably 3 or 4 car lengths from the intersection. He also observed people walking across Eddy Street in the block to the south. His own panel truck was then proceeding about 20 miles an hour. This speed could have varied 1 or 2 miles either way. As he continued and moved into the intersection he saw that the defendants' car wasn't going to stop. He immediately applied the brakes and was successful in stopping his car. There was a collision however. His panel truck was struck on its right side just on the trailing edge of the door and back of it. After the accident he was lying on his right side on the right of the truck seat. After a short interval he got out on the left side of the car and walked around to the back. The defendants' automobile was still against the panel truck but was starting to back away. It backed up approximately even with the stop...