Dickman v. Hackney
| Decision Date | 03 March 1948 |
| Docket Number | 32278. |
| Citation | 31 N.W.2d 232,149 Neb. 367 |
| Parties | DICKMAN v. HACKNEY et al. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. A motion for a directed verdict must for the purpose of decision thereon be treated as an admission of the truth of all material and relevant 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. A violation of statutes regulating the use and operation of motor vehicles upon the highways is not negligence per se but evidence of negligence which may be taken into consideration with all the other facts and circumstances in determining whether or not negligence is established thereby.
3. Where different minds may reasonably draw different conclusions from the same facts as to whether or not they establish negligence or contributory negligence, those issues must be submitted to the jury.
4. It is the general rule that it is negligence as a matter of law for a motorist to drive an automobile so fast on a highway at night that he cannot stop in time to avoid a collision with an object within the area lighted by his lamps.
5. This general rule has no application in those cases where reasonable minds may differ on the question of whether or not the operator of an automobile exercised the care, caution and prudence required of him under the circumstances of the particular situation.
Pilcher & Haney, of Omaha, for appellant.
Kennedy, Holland, DeLacy & Svoboda, of Omaha for appellees.
Heard before SIMMONS, C. J., PAINE, MESSMORE, YEAGER, CHAPPELL, and WENKE JJ., and WESTERMARK, District Judge.
This is a law action brought by the plaintiff against the defendants to recover damages for injuries received by the plaintiff, and damage to her automobile as the result of a collision between the plaintiff's automobile and the automobile being driven by the defendant William F. Hackney. At the conclusion of all the evidence the defendants moved for a directed verdict. This motion was sustained by the trial court. Upon the overruling of the motion for new trial, plaintiff appealed.
For convenience, the appellant will hereinafter be referred to as the plaintiff; the appellee Josiah R. Hackney will be referred to by name as occasion requires; and the appellee William F. Hackney will be referred to as the defendant.
The plaintiff contends that the trial court erred in refusing to submit the case to the case to the jury. This requires an examination of the evidence to determine whether or not the same makes a case to be submitted to the jury. We set forth in substance as much of the pleadings and the evidence disclosed by the record as we deem necessary to a determination of this appeal.
The plaintiff's petition alleged negligence on the part of the defendant driver, in substance, as follows: In operating an automobile on the highway in the nighttime at a high, excessive, careless, and unlawful rate of speed; driving said automobile at a speed greater than that which would permit him to bring it to a stop within the assured clear distance ahead, or within the range of the headlights; operating the automobile without lights; failing to keep a proper lookout for other vehicles on the highway; failing to sound horn or give any other signal to plaintiff of intention to pass; failing to change or swerve or divert the course of the automobile to either the right or the left, or make any other attempt to avoid an accident; and failing to have the automobile under proper and complete control.
The defendants' answer admitted an accident occurred and that the plaintiff received slight injuries; denied generally the allegations of the plaintiff's petition; charged the plaintiff with contributory negligence; counterclaimed for damages to the car of defendant Josiah R. Hackney, charging the plaintiff was guilty of negligence which proximately caused the accident in executing a left turn from the outside lane of the highway instead of from the inner lane, as required by law; failing to signal for a left turn; failing to look to the rear for approaching vehicles before attempting a left turn; failing to have her automobile equipped with a taillight in operating condition sufficient to reveal the presence of her car on the highway to travelers approaching from the rear; and in first stopping and then starting here automobile up again directly across the path of the defendant's car.
The reply denied any acts of negligence on the part of the plaintiff.
A brief description of the vicinity where the accident occurred shows a four-lane highway running approximately north and south usually serving heavy traffic, from 45 to 50 feet in width, the two inside lanes being brick, the two outside lanes concrete, with dividing lines for the traffic north and south, and formerly known as highway No. 75, or the Fort Crook highway. The plaintiff lives at No. 7013 on this highway, which is about four blocks south of Harrison Street. Her house faces west, and the driveway into the yard runs east and west. North on the highway, as shown in exhibits, is Harrison Street, where there is a turn into the Fort Crook highway.
The plaintiff is the owner of a black, 1933 two-door Ford car. Josiah R. Hackney, the father of the defendant, is the owner of a 1940 Pontiac. At the time of the collision, the defendant was driving his father's car, with his permission. For covenience, we will refer to the father's car as the defendant's car.
The record discloses that the plaintiff and her daughter were, at the time of the accident which occurred at about 11 p. m., April 1, 1946 employed at a factory. They checked out from work at 10:30 p. m. Before starting for home the daughter examined the taillights on the plaintiff's car. Apparently it was the custom of the plaintiff and her daughter to examine the taillights before leaving their place of work. The night was clear, stars were out, plaintiff's car was clean, and the streets were dry. The plaintiff was driving, and her daughter was seated in the front seat to the plaintiff's right. When the plaintiff angled off Harrison Street to proceed south on the highway, her speed was 20 miles an hour. Midway between her home and Harrison Street she met a car proceeding north in the outer lane of the northbound highway. She dimmed her lights in meeting this car, and then put them on bright again. She was driving in the lane designated as No. 1, which is the outside lane closest to the west curb. After meeting the car, she requested her daughter to look back and see if any cars were coming. The daughter turned completely around, looked, and reported no cars were coming. The plaintiff also looked in the rear-vision mirror and saw no cars coming. She then drove her car into the second lane, about 100 feet distant from her driveway, showing her car down due to the sharp turn into the driveway. After driving approximately 100 feet in the inner lane, which is designated as lane No. 2, the plaintiff started to angle her automobile to the left, or east, toward the driveway, at a speed of five to ten miles an hour. She observed no cars on the highway, either moving or parked, and had looked into the rear-vision mirror before she started to angle across the center of the highway. She heard a screeching of brakes and saw a flash of light, and her car was hit immediately. She was then approximately 30 feet north of the driveway. She heard no horn. Her left window was down. She made no signal to turn to the left, nor a signal that she was going to slow down. When the impact occurred, plaintiff's car made a complete turn and came to rest with the front end five feet south of the driveway, facing north. The left rear fender of the plaintiff's car was bent in; the spare tire, which is attached to the back part of the car, was jammed into the body, the gas tank had sprung a leak; the fenders and tires were damaged, the impact being on the left rear fender; and the left taillight was smashed. The bumper on the front of the defendant's car was jammed into the motor, both headlights were hanging, the radiator and grille were pushed back, and the fenders damaged.
The defendant's version of the accident is, in substance, as follows: As he was proceeding south on the Fort Crook highway straddling the center line between the two southbound lanes all of a sudden he saw what proved to be the plaintiff's car straddling what has been designated as lane No. 2, making a turn. It looked to him like the plaintiff's car was stopped, and he started to apply his brakes and turn to the left. Then it seemed to him as if the plaintiff's car started to move again. He then applied the brakes hard and started to slide. His automobile struck the plaintiff's automobile on the left back part thereof. The accident occurred at a point about where the center line separates the northbound and southbound lanes. He saw no taillights or anything on the back part of the plaintiff's car, and the first thing he noticed was the reflection of her headlights on the highway. No signal was given by the plaintiff for a left turn. The defendant had dimmed the lights on the car he was driving when he met a car near Harrison street, and had not put them back up; they were on for city driving. He testified...
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