Doan v. Hoppe
| Decision Date | 23 April 1937 |
| Docket Number | 29935. |
| Citation | 272 N.W. 763,132 Neb. 641 |
| Parties | DOAN v. HOPPE ET AL. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
When a pedestrian, crossing a business street between intersections at 11:30 at night, suddenly runs in front of an automobile and is struck by same, he is, as a matter of law, guilty of negligence contributing to his own injuries in a degree more than slight.
Appeal from District Court, Lancaster County; Broady, Judge.
Action by Lloyd Doan, a minor, by Wayman H. Doan, his father and next friend, against Harold Hoppe and another. Judgment for plaintiff, and defendants appeal.
Reversed and action dismissed.
Pedestrian who ran in front of, and was struck by automobile, which he had seen approaching at 11:30 at night, while crossing business street between intersections contrary to city ordinance, held guilty of more than slight contributory negligence and barred from recovering for injuries sustained.
Burkett, Wilson & Van Kirk, of Lincoln, for appellants.
Baylor & Tou Velle and George Healey, all of Lincoln, for appellee.
Heard before GOSS, C. J., ROSE, GOOD, DAY, PAINE, and CARTER, JJ., and CLEMENTS, District Judge.
This is an action for injuries to a pedestrian who was hit by an automobile, and the jury returned a verdict of $2,000. Defendant appealed.
The defendant assigns as error the action of the trial court in overruling the motion of the defendant to return a verdict in his favor at the close of the evidence, said motion being based on the ground that there was insufficient evidence to sustain a verdict for the plaintiff, and that the evidence failed to establish an issue of negligence as a matter of law, for that the plaintiff was guilty of negligence contributing to his own injuries in a degree that was more than slight, and that the evidence established as a matter of law that the defendant was not guilty of gross negligence.
The accident occurred after 11:30 p. m., August 2, 1935, on O street in the city of Lincoln, between Seventeenth and Eighteenth streets. The plaintiff is Lloyd Doan, was 20 years of age at the time of the accident, but was of full age at the time of the trial, and his father, Wayman H. Doan, is also named as plaintiff. The car was being driven by the defendant Harold Hoppe, aged about 21, the son of William F. Hoppe, the other defendant, who owned the automobile, which was a family car, being driven with the knowledge and consent of the father. The plaintiff was engaged in common labor, and had been assisting in trucking a load of household furniture during the evening, and was sitting on a davenport in the rear of a truck, which was parked at an angle on the south side of O street west of the middle of the block. His employer, Merle Allen, had crossed the street from the truck to a small hamburger stand, located on the north side of O street, and was standing there visiting with a friend, Frank Bonsor. Allen had called to the plaintiff to come across the street to get a little lunch, but was standing with his back to the street, and did not turn around until he heard the brakes go on. The plaintiff, when called, had started directly across in the middle of the block, and when he reached the middle of the street he said he looked both ways and saw the car coming from the east, and thought it was going about 40 miles an hour, but thought he could get across ahead of it safely.
The evidence shows that O street in the city of Lincoln runs east and west; that it is 70 feet wide from curb to curb, and entirely paved; that the hamburger stand is 14.1 feet across the front; that a usedcar business immediately to the west of it is 36 feet 3 inches wide, with a driveway through the curb, which driveway is 11.8 feet wide; that in this block there were three electroliers on each side of the street.
The defendant testified that he was alone in the car, driving west on O street; that his car was equipped with four-wheel brakes, which were in good condition; that he was driving about 25 miles an hour, was looking ahead, and watching the street; that he did not see the plaintiff until he was about ten feet ahead of him and coming into the left side of the car; that plaintiff was running; that defend ant put on his brakes, tried to get out of plaintiff's way by turning the car toward the north, and that the car was going in a northwesterly direction on the north side of O street when it struck the plaintiff; that the defendant kept his brakes on all the time, applying the brakes so hard that the wheels may have skidded, and brought the car immediately to a stop in the driveway in front of the used-car place; that he got out of the car, helped put plaintiff in the car and took him to a hospital, and then went and got the plaintiff's father and mother and took them to the hospital, then took them home again that night, and visited the plaintiff at the hospital the next day. The plaintiff was struck about in front of the east side of the hamburger shop, and the car came to rest in the driveway in front of the used-car place of business next west of the hamburger shop. The plaintiff rolled 30 or 40 feet down the street after he was hit. There is considerable dispute as to how far the car ran after striking the plaintiff, but it is not difficult to arrive at the approximate distance that the car ran after the brakes were put on.
The captain of the traffic division of the Lincoln police department, and head of the brake-testing department, testified that he had taken a course of study at the Traffic Officers' Training School at Northwestern University, and had made and observed many tests to determine the distance within which an automobile equipped with four-wheel brakes could stop while traveling on such pavement at the various rates of speed, and gave it as his opinion that the shortest distance within which the average automobile so equipped could be stopped was as follows: Within 80 feet if traveling 40 miles an hour; within 61 feet if traveling 35 miles an hour; within 45 feet if traveling 30 miles an hour; within 31 feet if traveling 25 miles an hour; that these distances are based upon the assumption that the brakes are applied during the entire distance to the fullest extent and that the wheels of the automobile do not skid, for if the wheels of an automobile skid, then the distances would be greater, for the car will stop more quickly if the brakes do not lock the wheels and cause them to slide. He testified that the speed limit allowed on the date and place of the accident was 25 miles an hour.
The plaintiff testified orally in the case at bar, and said he had only gone to school a very short time, and was only experienced in labor on farms and elsewhere. Also, additional evidence of plaintiff was taken by deposition at the Lincoln General Hospital, and was read...
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