Doan v. Hoppe
| Decision Date | 07 January 1938 |
| Docket Number | 29935 |
| Citation | 277 N.W. 64,133 Neb. 767 |
| Parties | LLOYD DOAN, APPELLEE, v. HAROLD HOPPE ET AL., APPELLANTS |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Lancaster county: JEFFERSON H BROADY, JUDGE. Opinion on motion for rehearing of case reported in 132 Neb. 641. Former opinion disapproved and judgment of district court reversed.
REVERSED.
Syllabus by the Court.
1. The provision in section 39-1148, Comp.St.Supp.1935, that " the driver of any vehicle traveling at an unlawful speed shall forfeit any right of way which he might otherwise have hereunder," is limited in its application to subdivision (a) of the act and applies only to vehicles approaching and entering intersections at approximately the same time.
2. Where the evidence discloses that defendant's car struck plaintiff while crossing a street between intersections, it is error to instruct the jury that unlawful speed on the part of defendant would forfeit the right of way given him by section 39-1148, Comp.St.Supp.1935.
3. A pedestrian crossing a street at a place other than a street intersection or crosswalk in direct violation of a city ordinance is required to keep a constant lookout for his own safety in all directions of anticipated danger.
4. The driver of an automobile having the right of way between street intersections is not required to anticipate that pedestrians will violate an ordinance prohibiting them from crossing a street at a point other than a crosswalk.
5. When the driver of the car has the right of way but the situation is such as to indicate to the mind of an ordinarily prudent person that to proceed would probably result in injury to a pedestrian, it is his duty to exercise ordinary care to prevent the injury, even if the pedestrian may have been negligent.
Appeal from District Court, Lancaster County; Broady, Judge.
On reargument.
Former decision set aside and judgment reversed, and cause remanded to district court for new trial.
For former decision, see 272 N.W. 763.
Where evidence disclosed that defendant's automobile struck pedestrian who was crossing street between intersections, statute regarding forfeiture of right of way because of unlawful speed was inapplicable, and giving of instruction that unlawful speed on part of defendant would forfeit right of way constituted error. Comp.St.Supp.1935, § 39-1148(a).
Burkett, Wilson & Van Kirk, for appellants.
Baylor & Tou Velle and George Healey, contra.
This is an action to recover for injuries sustained by a pedestrian when struck by defendant's automobile. The verdict of the jury was for the plaintiff in the amount of $ 2,000, for which judgment was entered. Defendant's motion for a new trial was overruled and defendant appeals.
A former opinion of this court appears at 132 Neb. 641, 272 N.W. 763. The case is again before us after a reargument. The facts are stated in the former opinion and will not be repeated in detail here.
The evidence shows that plaintiff was crossing O street in Lincoln in the middle of the block between Seventeenth and Eighteenth streets when the accident occurred. The defendant was driving west on O street when he struck plaintiff. There is sufficient evidence in the record, if believed, to sustain a finding by the jury that defendant drove his car at an excessive rate of speed.
In the charge to the jury the trial court stated the law, in part, to be as follows:
The section of the statute upon which this instruction is based is as follows: Comp. St. Supp. 1935, sec. 39-1148.
It will be noted that the provision for the forfeiture of the right of way because of excessive speed appears only in subdivision (a) of the statute and by the use of the words "which he might otherwise have hereunder" is limited to that subdivision. Subdivision (a) applies only to vehicles approaching or entering intersections at approximately the same time and the legislature clearly intended by this provision to prevent one by the use of excessive and unlawful speed from acquiring a right of way he would not have had otherwise. It is a recognition by the legislature of the dangers growing out of a situation permitting one to race for a right of way at an intersection. But this statute can have no application where the accident occurred in the middle of a block as in the case at bar.
Plaintiff relies upon the case of Logan v. Schjeldahl, 66 N.D. 152, 262 N.W. 463, to sustain his contention that excessive and unlawful speed upon the part of the defendant Hoppe forfeits the right of way that he otherwise had over plaintiff under the statute. The statute involved was practically identical with ours. In that case the defendant drove down a highway at a speed found to be from 60 to 70 miles an hour and struck a car entering the highway from a private road. This situation was covered in the exception contained in subdivision (a), as it is in our statute also, by giving the driver on the highway the right of way over those approaching an intersection on a private road from either the right or the left. The North Dakota court in effect said that the exception as it was written was in effect a part of subdivision (a) by reference and that the clause providing for a forfeiture of the right of way by the use of unlawful speed was applicable. The decision is not authority for plaintiff's contention that the instruction was properly given under the facts shown in the instant case. The provision relied on applies only to subdivision (a) of this statute, and no other. We necessarily conclude that the trial court's instruction hereinbefore quoted was improperly given and was prejudicial to the rights of the defendant.
Defendant contends, however, that the evidence is insufficient to sustain a judgment in any amount and that the action ought to be dismissed by this court.
It is not disputed that the statute gave the driver of the car a right of way over plaintiff at the place where the accident occurred. Comp. St. Supp. 1935, sec. 39-1148. The evidence also discloses that an ordinance of the city of Lincoln provides that no pedestrian shall cross any street at a place other than a crosswalk and provides a punishment for its violation. The first question to be considered is the degree of care placed upon one who "jaywalks" across a street contrary to the city ordinance. This court has held many times that the violation of a statute or an ordinance regulating traffic does not constitute negligence as a matter of law but is evidence of negligence to be considered by the jury in connection with other circumstances in evidence. The mere fact that a pedestrian walks across a street between intersections contrary to ordinance is not of itself negligence. But, one who does so must necessarily be required to exercise a greater degree of care than one who walks across a street at a crosswalk where protection is afforded by giving the pedestrian the right of way.
In the case of Crowl v. West Coast Steel Co., 109 Wash. 426, 186 P. 866, the court in a case involving a similar situation said:
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