Dorn v. Sturges

• Decision Date: 24 July 1953
• Docket Number: No. 33351,33351
• Citation: 59 N.W.2d 751,157 Neb. 491
• Parties: DORN v. STURGES.
• Court: Nebraska Supreme Court

Page 751

59 N.W.2d 751

157 Neb. 491

DORN v. STURGES.

No. 33351.

Supreme Court of Nebraska.

July 24, 1953.

Syllabus by the Court.

1. If a motion for a directed verdict is made at the close of the plaintiff's evidence and again at the close of all the evidence or in the alternative to dismiss plaintiff's case, to test the sufficiency of the evidence to support a verdict, it must be considered in the light most favorable to the successful party, that is, every controverted fact must be resolved in his favor and he should have the benefit of every inference that can reasonably be deduced therefrom.

2. A driver of a motor vehicle about to enter a highway protected by stop signs must stop as directed, look in both directions, and permit all vehicles to pass which are at such a distance and traveling at such a speed that it would be imprudent to proceed into the intersection.

3. Extrajudicial statements of fact made by a party relating to matters material to the issues in a controversy are available to the adverse party in a trial thereof as admissions against interest or for impeachment. Such statements are, however, not conclusive but may be explained, rebutted, or contradicted, and thereafter are to be given such weight as the trier of facts deems them entitled.

4. In an action for damages to an automobile, where the automobile cannot be placed in substantially as good condition as it was before the injury, the measure of damages is the difference between its reasonable market value immediately before and immediately after the accident.

5. The duty to sound a signal warning of the approach of a motor vehicle depends largely on the circumstances of the particular case.

6. Instructions must be considered and construed together. If they are not sufficiently specific in some respects, it is the duty of counsel to offer requests for instructions that will supply the omission, and, unless this is done, the judgment will not ordinarily be reversed for such defects.

Gross, Welch, Vinardi & Kauffman, Gray & Brumbaugh, Omaha, for appellant.

Hubka & Hubka, Beatrice, Fraser, Connolly, Crofoot & Wenstrand, Omaha, for appellee.

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

MESSMORE, Justice.

This is an action at law brought in the district court for Douglas County by Tom G. Dorn against William Sturges to recover damages to the plaintiff's 1941 Ford V-8 2-ton truck, hereinafter referred to as the truck, driven by his son Arthur Dorn, as the result of a collision between plaintiff's truck and the defendant's 1947 Plymouth coach driven by the defendant. The accident occurred at Sixtieth and L Streets in Omaha, Nebraska.

The case was tried to a jury resulting in a verdict in favor of the plaintiff and against the defendant in the amount of $1,045, and a dismissal of the defendant's cross-petition. The defendant filed a motion for new trial which was overruled. From the order overruling the motion for new trial, the defendant perfected appeal to this court. For convenience we will refer to the parties as they are designated in the district court.

Insofar as necessary to a determination of this appeal, we set forth the substance of the pleadings.

Plaintiff's petition charged the defendant with negligence in the following respects: That defendant failed to keep his car under proper control, and he failed to keep a proper lookout for other automobiles at the same time and place; that he failed to stop his car at the stop sign located north of the intersection of Sixtieth and L Streets, or at any time prior to entering the intersection; that the defendant failed to stop his car for sufficient length of time before entering the intersection to ascertain if the intersection was clear of approaching vehicles constituting a menace; that the defendant failed to concede the right-of-way to the truck; that the defendant failed to give warning of his intention to turn to the east when entering the intersection; that the defendant cut inside the center point of the intersection toward the east, and in turning into the intersection failed to make a square turn as provided by law and that the defendant failed to stop or divert the course of his automobile and thereby avoid a collision upon discovering the truck.

In addition thereto, the plaintiff alleged that the truck, as heretofore described, was demolished to the extent that it could not be repaired and placed in as good condition as it was prior to the accident; that the reasonable market value of the truck immediately before the accident was $1,400; that the reasonable market value of the same after the accident was $425; that the plaintiff's truck was damaged in the amount of $975; that after the accident the truck had to be immediately removed from the highway at a cost to the plaintiff of $5, and thereafter towed to Beatrice, Nebraska, at an expense of $65; and that these amounts were fair and reasonable and constituted a part of plaintiff's damages.

There was an item in the amount of $100 for the loss of the use of the truck as a result of the collision at $10 a day for 10 days which the trial court did not submit to the jury.

The plaintiff prayed for damages in the amount of $1,145, interest and costs, which was restricted to $1,045, interest and costs.

The defendant's answer denied generally the allegations of the plaintiff's petition not admitted; specifically denied the necessity of towing the truck, or that the amount charged therefor was reasonable; and admitted the ownership of the truck in the plaintiff and the operation thereof by his son at the time of the accident.

The defendant, by cross-petition, alleged injury and disability to himself and damage to his automobile resulting from the negligence of the plaintiff and the plaintiff's son in the following respects: Failure of the plaintiff's son to observe south-bound traffic on Sixtieth Street; failure to surrender right-of-way to the defendant; excessive speed under the conditions prevailing; that the plaintiff's son made an abrupt turn of the truck to the left and into defendant's car instead of proceeding straight ahead or to the right to avoid the collision; and failure of the plaintiff's son to sound his horn or give other warning or to apply his brakes. The cross-petition alleged damages in the amount of $4,647.95. There was no proof offered as to $450 salary alleged as damages by the defendant. The employer continued to pay defendant during his absence from work.

The intersection of the streets and location of the scene of the accident may be described as follows: Sixtieth Street runs in a north-south direction, L Street runs in an east-west direction, and both are paved with concrete. L Street is a 4-lane highway with the paving 42 feet wide as it approaches the intersection of Sixtieth and L Streets from the east. West of the intersection L Street is a 2-lane highway with the paving 20 feet wide. The paving on Sixtieth Street is 18 feet wide, and it is a 2-lane street. On the northwest corner of the intersection is the Tex Filling Station. There is a stop sign on the west side of Sixtieth Street to the north of L Street, located in a concrete well the center of which is 44 feet north of the edge of the paving of L Street west of the intersection. This stop sign is for traffic going south on Sixtieth Street. There is another stop sign, which is a straight sign, 58.8 feet south of the south edge of L Street east of Sixtieth Street, that is for north-bound traffic on Sixtieth Street. The percentage of grade east on L Street is 6.6 percent, and on the west 5.6 percent, 5.2 percent, and 4.76 percent. The grade east of the intersection continues up the hill and is practically a straight grade for at least 1,000 feet. It is 1,000 or 1,200 feet to the summit of the hill. The distance from the southeast corner of the filling station to the north edge of L Street is 31 feet. The distance from the west edge of Sixtieth Street to the same corner of the filling station is 32 feet. Sixtieth Street and L Street are not in the city limits. Where Sixtieth Street enters the intersection, the pavement curves to the east and west on L Street, and it is 61 feet from the north line of L Street west to where the pavement starts to curve.

The plaintiff's son testified that at the time of trial he was 19 years of age; that he resided with his parents on a farm 2 miles north of Filley and 15 miles east of Beatrice; that stock is raised on this farm; that he began driving a truck with an assistant when he was 16 years of age, and subsequently by himself in making trips to Omaha; that such trips were made on numerous occasions to deliver stock; and that the truck involved in the accident carried stock which he was to deliver at the stock yards in Omaha on the day in question. He left the farm home between 12 midnight and 1 a. m. The stock was unloaded and he rested, then proceeded back toward home which is a distance of 92 miles from the stock yards. He further testified that he was driving the truck west on L Street in the farthest lane to the north until he came to a point where the lines converge into the 2-lane highway on L Street. He was driving in low range, the truck having eight gears, at a speed not to exceed 30 or 35 miles an hour as he proceeded down the hill. The morning was clear, the sun had just begun to rise. It was daylight, and the pavement was clear with no snow or ice. He was familiar with the intersection and knew where the stop sign was located on Sixtieth Street. As he came down the hill he could see the defendant's car approaching approximately 10 or 15 feet north of the stop sign. At that time his truck was 175 feet east of the intersection. He watched the defendant's car, and knew that the defendant would encounter the stop sign before he entered the intersection into L Street. The defendant did not stop at this stop sign. When he first saw ...