Davis v. Spindler

• Decision Date: 12 December 1952
• Docket Number: No. 33179,33179
• Citation: 156 Neb. 276,56 N.W.2d 107
• Parties: DAVIS v. SPINDLER et al.
• Court: Nebraska Supreme Court

Page 107

56 N.W.2d 107

156 Neb. 276

DAVIS v. SPINDLER et al.

No. 33179.

Supreme Court of Nebraska.

Dec. 12, 1952.

Syllabus by the Court.

1. A motion for directed verdict or its equivalent must, for purpose of decision thereon, be treated as an admission of the truth of all competent evidence submitted on behalf of the party against whom the motion is directed. Such party is entitled to have every controverted fact resolved in his favor and to have the benefit of every inference that can reasonably be deduced from the evidence.

2. In those cases where reasonable minds may differ on the question of whether or not the operator of a motor vehicle exercised the care, caution, and prudence required of him under the circumstances of the particular situation the issue of negligence on the part of the operator is one of fact to be determined by a jury.

3. In an action where there is any evidence which will support a finding for a party having the burden of proof, the trial court cannot disregard it and direct a verdict against him.

Luebs & Elson, Grand Island, for appellant.

Kirkpatrick & Dougherty, York, Louis A. Holmes, Grand Island, for appellees.

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

CHAPPELL, Justice.

Plaintiff brought this action to recover for the wrongful death of his minor son resulting from a collision between an International truck-trailer traveling east and a Pontiac four-door sedan traveling west. The collision occurred about one a. m., March 17, 1951, on U. S. highway No. 34, a two-lane paved highway 20 feet wide, at a point other than an intersection thereon, about one-quarter mile east of Aurora, Nebraska.

Admittedly the truck, owned and operated by defendants Dexter E. Spindler and C. James Holm, doing business as a co-partnership under the name of Grand Island Dairy Products Co., was being driven by defendant Donald L. Larson, their employee, who at the time of the accident was acting for them within the course and scope of his employment. Concededly, the truck with trailer attached was approximately 45-feet long, and then carried a cargo of eggs weighing 22,000 pounds. Defendants George W. Butcher and Percy Butcher, doing business as Butcher Bros., were dismissed out of the case upon demurrer from which no appeal was taken. The car was owned by plaintiff's son, Donald G. Davis, hereinafter called decedent, but at the time of the accident it was driven by another young man while the son was a passenger therein.

At conclusion of plaintiff's evidence, defendants each moved for a directed verdict, or in the alternative for judgment, upon the ground of insufficiency of the evidence to establish any negligence of defendants proximately causing the accident. Such motion was sustained and plaintiff's motion for new trial was overruled, whereupon he appealed, assigning substantially that the trial court erred in so doing. We sustain the assignment.

Insofar as important here, plaintiff substantially alleged in his petition that the driver of defendants' truck was negligent in that: (1) He failed to keep a proper lookout or have the truck under reasonable control; (2) failed to yield the right-of-way and stop or remain on the right-hand or south side of the highway until the oncoming car, on its right or north side of the highway, in which decedent was riding as a passenger, had passed; and (3) negligently turned from a direct course across the highway into the path of and against such car, when such movement could not be made with reasonable safety, all of which proximately caused the accident and resulting death.

Defendants answered, denying generally and alleging that the damages sustained, if any, were caused and contributed to by the negligence, more than slight, of decedent and the operator of his car, who were engaged in a joint enterprise, thereby imputing the negligence on one to the other. Plaintiff's reply was in form a general denial.

The evidence adduced in plaintiff's behalf disclosed that: On March 16, 1951, decedent and three other young men, all of whom lived in Grand Island, attended a high school basketball tournament in Lincoln. A young lady friend of decedent, whose parents had recently moved to Grand Island, was permitted to ride back in the car with them. At about 10 p. m. she got into the car and they started from Lincoln to Grand Island. They stopped 10 or 15 minutes at a station on the outskirts of Lincoln to refuel the car and get something to eat. After leaving Lincoln decedent sat on the left side of the back seat with another young man on the right side and the young lady between them. Another young man, 19-years old, drove the car while another sat by his side. As they drove along decedent went to sleep and the young lady visited with the other young man on her right until she also slept. She was asleep when the accident occurred, and did not know anything about the details thereof or even that there had been an accident until about two weeks later, after hospitalization. She alone survived. Thus there were no surviving eye witnesses in the car.

After the accident the young man sitting on the right of the back seat and the young lady were found lying outside the car on the gravel north of the pavement and west of the car. Two young men were still in the front seat, with decedent in the back seat. All three were dead. The young man on the ground was taken to a hospital but also lost his life.

It was a cloudy, dry, dark night. The collision occurred just south and east of a filling station and cafe housed in one building 24-feet long, north of the pavement. The cafe was in the west end and the station in the east. Four gas pumps were located 34 feet north of the north edge of the pavement between the filling station and the pavement. The accident occurred south and a little east of the east pump. There was one lighted visible flood light on the east end of the building and one on the southwest which lighted around the pumps, the front of the station, and out into the highway on a dark night.

At the time of the accident there were four people in the cafe. They did not see the collision but heard the crash and immediately went outside to see what had happened. A car owned by one of them was parked facing west, parallel with the north edge of the pavement just south and east of the east gas pump. The owner and another testified that the car was parked about six or eight feet north of the pavement. A police officer thought it was about 10 or 12 feet, but the sheriff thought it was about 20 feet north of the pavement. In any event, it was parked close enough so that when the car here involved apparently swerved as shown by marks on the gravel north of the payment, its right back bumper struck and damaged the left front hubcap and fender of such parked car. A truck and trailer unit, owned and operated by defendants but not directly involved in the collision, was also parked six or eight feet north of the pavement facing east with its front about even with the west edge of the cafe. Thus there was an open space just north of the pavement between such truck and parked car. From the edge of Aurora to the station the highway was level and straight except for a slight curve to the southeast just west of the station. Going east therefrom the highway was straight and slightly upgrade for about four-tenths of a mile to the top of the upgrade. The platform and entrance to the station were about the same level as the pavement, and the view from the station east was unobstructed to the top of the upgrade.

Defendant driver, traveling east, had been previously following quite a ways behind the other truck already parked on the north side of the pavement just west of the cafe. At the time of the collision defendant driver was turning left at 15 miles an hour across the westbound lane of traffic along which decedent's car was traveling, to park in ahead of the truck he had been following; that is, to park in the space between the parked car and the parked truck.

Two persons who were in the cafe testified concerning the positions of the truck and the car right after the accident. Their testimony was verified by several identical photographs offered by both plaintiff and defendants. The truck and car here involved were still in the same positions when a police officer and sheriff arrived a few moments later to investigate the accident. The tractor part of the truck was facing northeast and the car was facing southwest. The front ends of the vehicles were located south and east of the gas pumps a short distance north of the north edge of the pavement. The car was all north of the pavement, on the gravel. The front end of the tractor was off the pavement with its left rear drive-wheels stopped just north of the pavement after sliding 10 feet in a northeasterly direction. The left front of the tractor and the left front of the car had collided and meshed into each other. The left front wheel of the car was apparently pushed backward to the northeast. Its engine was pushed back up into the driving compartment, and the left front side of the car was practically sheared back to the front of the top. The right front side of the car, up to the fender, was also damaged and there were no lights on the car after the accident. All of the trailer was in the north half of the highway, the right rear wheel thereof being on the center line of it.

The police officer arrived first and directed removal of the parked truck not involved in the collision so that an ambulance could drive in. The sheriff arrived soon thereafter and, after both had investigated the accident, the sheriff prepared a written report which defendants themselves offered in evidence, verifying the testimony of such officers. They testified that there were skid marks 10 feet long running in an easterly or southwest to northeasterly direction back of the tractor...