Dutton v. Travis
| Decision Date | 30 July 1996 |
| Docket Number | No. A-95-414,A-95-414 |
| Citation | 551 N.W.2d 759,4 Neb.App. 875 |
| Parties | Sarah DUTTON, Appellant, v. Beverlee J. TRAVIS, Appellee. |
| Court | Nebraska Court of Appeals |
Syllabus by the Court
1. Summary Judgment. Summary judgment is proper only when the pleadings, depositions, admissions, stipulations, and affidavits in the record disclose that there is no genuine issue as to any material fact or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law.
2. Summary Judgment: Appeal and Error. In reviewing a summary judgment, an appellate court views the evidence in a light most favorable to the party against whom the judgment is granted and gives such party the benefit of all reasonable inferences deducible from the evidence.
3. Summary Judgment: Negligence: Proof. Under the current standard, to obtain summary judgment on the issue of contributory negligence, the defendant has the burden to prove, under the facts viewed most favorably to the plaintiff, that the contributory negligence of the plaintiff is equal to or greater than the negligence of the defendant as a matter of law.
4. Pedestrians: Highways: Right-of-Way. A pedestrian crossing a street between intersections is held to a higher standard of care than one crossing at a crosswalk where the pedestrian is afforded the right-of-way.
5. Motor Vehicles: Pedestrians: Highways: Right-of-Way. When crossing a street at a point not within a crosswalk, a pedestrian is required to yield the right-of-way to all vehicles on that roadway.
6. Pedestrians: Highways. A pedestrian who crosses a street between intersections is required to keep a constant lookout for his or her own safety in all directions of anticipated danger.
7. Motor Vehicles: Pedestrians: Highways: Juries. Where a pedestrian looks but does not see an approaching automobile, sees it and misjudges its speed or its distance from him or her, or for some reason concludes that he or she could avoid injury to himself or herself, a jury question is usually presented.
8. Pedestrians: Highways: Testimony. Even if a plaintiff testified that he or she did look before crossing the street, it is implied that the plaintiff looked in such a manner that he or she would see that which was in plain sight unless some reasonable excuse for not seeing was shown.
9. Motor Vehicles: Pedestrians: Highways: Right-of-Way. Between intersections, an automobile has the right-of-way over pedestrians, and the driver of an automobile has the right to assume that pedestrians will observe this rule. The driver is not required to anticipate that a pedestrian will violate this rule.
George M. Zeilinger, Grant, for appellant.
William M. Wroblewski, of Kay & Kay, North Platte, for appellee.
Sarah Dutton brought a negligence action against Beverlee J. Travis, seeking damages for personal injuries arising out of an automobile-pedestrian accident. The district court for Chase County granted summary judgment in favor of Travis, finding Dutton contributorily negligent as a matter of law. Dutton appeals from that decision.
On May 29, 1992, between approximately 8 and 8:30 a.m. in Imperial, Nebraska, Sarah Dutton left her house, located on the south side of 12th Street, with the intention to cross the street and go to her neighbor's house. Dutton, who was 78 years old at the time of the accident, was going to visit her neighbor, Terri L. Commins, so that Commins could read to Dutton an entry in an address book which Dutton could not read.
Dutton testified in her deposition that when she came to her mailbox, located on the edge of her lawn next to 12th Street, she stopped and looked left (west) and right (east) along 12th Street, did not see any traffic, and proceeded to cross the street. Dutton stated that the weather was nice, the sun was shining, and there were no obstacles blocking her view of the road. Dutton stated that her mailbox is located approximately half a block from the intersection of 12th and Park Streets. According to Dutton, although she wore glasses, her eyesight was good, and she had problems only with close reading.
Shortly after Dutton entered the street, she was struck by an automobile driven by Beverlee J. Travis. Travis testified in her deposition that just before the collision she had left the Colonial Kitchen parking lot located approximately two blocks (apparently west) from Dutton's house and was driving east on 12th Street. When Travis first saw Dutton, Travis' vehicle either was in the middle of the first intersection west of the block in which Dutton lives or was just entering into that block, and Dutton was standing beside her mailbox. Travis assumed that Dutton was mailing something. Travis also assumed that Dutton would not be crossing the street by herself, because Travis knew Dutton and was aware that Dutton did not have good eyesight. Specifically, Travis testified that she was aware that Dutton had poor eyesight because of a previous incident where it had been necessary for Travis to actually take Dutton's hand and tell Dutton who she was before Dutton was able to recognize her.
Travis testified that after observing Dutton by her mailbox, Travis looked into her rearview mirror "for a second," and when she looked back at the road, Dutton was directly in front of her car by the hood ornament, approximately in the middle of Travis' lane of traffic. Travis, who stated she was traveling approximately 10 to 15 m.p.h., then swerved to the left and hit her brakes. The bumper on the passenger side of Travis' car hit Dutton's left side, forcing Dutton onto the hood of the car and then against the windshield and back to the ground. Travis' vehicle stopped east of Dutton's mailbox.
As a result of the accident, Dutton's left leg was broken. Dutton does not recall anything about the accident. Travis stated that had Dutton been a small child, "I probably never would have taken my eyes off of [her]." Travis also stated that there was nothing obstructing her view.
In an affidavit, Dutton's neighbor, Commins, stated that on the morning of May 29, 1992, after receiving a telephone call from Dutton advising Commins that she was coming over to Commins' house, she looked out her living room window and saw Dutton by the mailbox. After looking down to clear clothing and papers from her couch, Commins again looked toward 12th Street and saw Dutton rolling off of Travis' car. Dannie Mickelson, an insurance adjuster who investigated the accident, stated in an affidavit that the distance from the Colonial Kitchen parking lot to Dutton's mailbox was 446 feet. From the mailbox to the intersection to the east was 75 feet.
On October 6, 1994, Dutton filed a petition in the district court for Chase County alleging that Travis' negligence had been the direct and proximate cause of injuries to Dutton. Travis filed an answer denying the allegations in Dutton's petition and asserting that Dutton's own negligence was the direct and proximate cause of her injuries. Further, Travis alleged that if she was negligent, Dutton was contributorily negligent to such an extent as to bar her recovery as a matter of law. Travis then filed a motion for summary judgment on February 22, 1995.
A hearing on the motion for summary judgment was held on March 10, 1995, at which the court received the depositions of Dutton and Travis and the affidavits of Commins and Mickelson. In an order dated March 22, 1995, the district court found that there were no material questions of fact. Further, the court found that Dutton was contributorily negligent and that Dutton's negligence was more than slight and equal to or greater than the negligence of Travis. Accordingly, the court granted Travis' motion for summary judgment. Dutton timely appeals from this order.
On appeal, Dutton asserts that the district court erred in determining that Dutton's negligence was equal to or greater than Travis' negligence and in granting Travis' motion for summary judgment.
Summary judgment is proper only when the pleadings, depositions, admissions, stipulations, and affidavits in the record disclose that there is no genuine issue as to any material fact or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law. Shipley v. Baillie, 250 Neb. 88, 547 N.W.2d 711 (1996); Schiffern v. Niobrara Valley Electric, 250 Neb. 1, 547 N.W.2d 478 (1996).
In reviewing a summary judgment, an appellate court views the evidence in a light most favorable to the party against whom the judgment is granted and gives such party the benefit of all reasonable inferences deducible from the evidence. Shipley v. Baillie, supra.
Dutton argues that the district court erred in finding that she was contributorily negligent as a matter of law so as to bar her from recovery. The law in Nebraska on contributory negligence has changed in recent years. Under the present law, in any action accruing after February 8, 1992, a plaintiff's contributory negligence "diminish[es] proportionately the amount awarded as damages for an injury attributable to the claimant's contributory negligence," but does not bar recovery unless the plaintiff's contributory negligence is equal to or greater than the defendant's. Neb.Rev.Stat. § 25-21,185.09 (Reissue 1995). This modified comparative negligence statute, with its equal-fault bar, replaces the previous standard, under which a plaintiff would be barred from recovery as a matter of law if his or her contributory negligence was more than slight or the defendant's negligence was less than gross in comparison. Neb.Rev.Stat. § 25-21,185 (Reissue 1995).
Under the former standard,
to obtain summary judgment on the issue of contributory negligence, the defendant has the burden of proving, under the facts viewed...
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Kozlov v. Associated Wholesale Grocers, Inc.
...contributory negligence "was more than slight or the defendant's negligence was less than gross in comparison." Dutton v. Travis, 4 Neb.App. 875, 551 N.W.2d 759, 762 (1996). Also, "determination of apportionment [of negligence among the parties] is solely a matter for the fact finder." Bald......
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...to or greater than the negligence of the defendant as a matter of law. Neb.Rev.Stat. § 25-21,185.09 (Reissue 1995); Dutton v. Travis, 4 Neb.App. 875, 551 N.W.2d 759 (1996). As discussed above, the facts viewed in the light most favorable to Hawkins reveal that he did not know about the poss......
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State v. Welch
...(1988) (interpreting Neb.Rev.Stat. § 39-644 (Reissue 1984), which was later transferred to § 60-6,109). See, also, Dutton v. Travis, 4 Neb.App. 875, 551 N.W.2d 759 (1996). Although our pronouncement was made in a civil case, it applies equally to the criminal case under Thus, § 60-6,109 req......
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...Fidler gave no indication that she would not yield the right-of-way to the oncoming traffic. We briefly note that Dutton v. Travis, 4 Neb.App. 875, 551 N.W.2d 759 (1996), also involving a vehicle-pedestrian accident, is distinguished from the present case in that in Dutton, we addressed an ......