Flory v. Holtz

• Decision Date: 06 March 1964
• Docket Number: No. 35563,35563
• Citation: 176 Neb. 531,126 N.W.2d 686
• Parties: Diamond FLORY, Administratrix of the Estate of Harold W. Flory, Deceased, Appellant, v. Walter HOLTZ, Appellee.
• Court: Nebraska Supreme Court

Page 686

126 N.W.2d 686

176 Neb. 531

Diamond FLORY, Administratrix of the Estate of Harold W. Flory, Deceased, Appellant, v. Walter HOLTZ, Appellee.

No. 35563.

Supreme Court of Nebraska.

March 6, 1964.

Syllabus by the Court

1. A qualified expert upon laying a proper foundation may give his opinion as to the minimum speed which a vehicle must have been traveling to lay down the skid mark shown in the evidence.

2. Whether a witness' qualification to state his opinion is sufficiently established rests largely in the discretion of the trial court, and its ruling thereon will not ordinarily be disturbed on appeal unless there is a clear showing of abuse.

3. Various factors, such as skid marks, distance traveled after impact, and force of impact, constitute pertinent evidence in arriving at an estimate of the rate of speed of an automobile.

4. For a hypothetical question to be sufficient to permit a qualified expert to give an estimate on the rate of speed of a vehicle at any particular point, all necessary factors needed to suggest a reasonably accurate opinion must be included in the question and supported by the evidence. There must not be any room for speculation in the factors on which the opinion is to be based.

5. A motion for a directed verdict must 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.

6. The burden of proving negligence is on the party alleging it.

7. Negligence is never presumed and it cannot be inferred from the mere fact that an accident happened.

8. Actionable negligence herein on the part of the defendant cannot be inferred from a presumption of due care on the part of the deceased.

9. The presumption of due care raised by the instinct of self preservation benefits the defendant as well as the deceased.

10. Negligence is a question of fact and may be proved by circumstantial evidence and physical facts. However, the law requires that the facts and circumstances proved, together with the inferences that may properly be drawn therefrom, indicate with reasonable certainty the negligent act charged.

11. Motor vehicles traveling upon public highways shall give the right-of-way to vehicles approaching along intersecting highways from the right and shall have the right-of-way over those approaching from the left when said vehicles shall reach the intersection at approximately the same time. In all other cases the vehicle reaching the intersection first shall have the right-of-way. Section 39-728, R.S.Supp., 1961.

12. This statute is intended to avoid collision between vehicles at intersections and the right-of-way is not to be determined by the single test of which vehicle actually entered the intersection first, if the vehicles approached or entered the intersection at approximately the same time.

13. The drivers of vehicles approach an intersection at approximately the same time whenever the two vehicles are in such relative position that upon appraisal of all factors it should appear to a man of ordinary prudence approaching from the left that there is danger of collision if he fails to yield the right-of-way.

14. The facts and circumstances herein, and the inferences which may be drawn therefrom, are not sufficient to indicate with reasonable certainty actionable negligence on the part of the defendant.

15. Where a motion for a directed verdict or dismissal is sustained, the counterclaim or cross-petition shall be continued as a separate cause and trial thereon had at a subsequent jury the same as if it had been filed as a separate action.

Dryden & Jensen, Andrew J. McMullen, Tye, Worlock & Knapp, Kearney, Paine & Paine, Grand Island, for appellant.

Luebs, Elson, Tracy & Huebner, Grand Island, for appellee.

Heard before WHITE, C. J., and CARTER, MESSMORE, YEAGER, SPENCER, BOSLAUGH, and BROWER, JJ.

SPENCER, Justice.

This is an action to recover damages for the death of Harold W. Flory, as the result of the alleged negligence of Walter Holtz. The action was brought by Diamond Flory, widow of the deceased, as administratrix of the estate of Harold W. Flory. The parties will hereinafter be referred to as follows: Diamond Flory, administratrix, as plaintiff; Walter Holtz as defendant; and Harold W. Flory as deceased.

Defendant's motion at the close of plaintiff's evidence to dismiss plaintiff's petition was sustained, and a trial on the defendant's cross-petition was continued to a subsequent jury. Upon the overruling of her motion for new trial, plaintiff perfected her appeal to this court.

The collision resulting in the death of deceased occurred at about 3:30 p. m., on October 2, 1961, in Buffalo County, at an unprotected county road intersection 1 mile west and 1 mile north of Shelton, Nebraska. Both roads were level, dry, graveled, and approximately 20 feet wide. Deceased was driving a 1959 Chevrolet pickup truck, hereinafter referred to as pickup, weighing 4,164 pounds, on the east-west road, traveling toward the west. Defendant was operating a 1960 Chevrolet truck, hereinafter referred to as truck, weighing 8,950 pounds, on the north-south road traveling toward the south. The view of the intersection was obstructed for both vehicles by a cornfield at the northeast corner of the intersection. The evidence is that the corn at that time was from 10 to 12 feet high.

There were no eyewitnesses to the collision. Both drivers were alone, and the defendant has no recollection of it. One of plaintiff's witnesses, who was disking 1,000 feet away from the north-south road, saw the defendant's truck for approximately 300 feet through an opening in the corn rows, and when it went out of sight it was then about 300 feet from the intersection. He testified: '* * * it wasn't going real slow and it wasn't going excessively fast; it was just driving normal.' This witness did not see the deceased as he could not see the east-west road because of the corn, but he testified he was aware that another car was in the vicinity because as he was disking east he had observed a little dust about 1,200 feet from the corner on the east-west road. At that time he estimates he was about 100 feet from his turn, traveling about 4 1/2 miles per hour. He made his turn to the west and had returned about 100 feet when he saw the defendant's truck.

The investigating officer found a skid mark of 45 feet extending straight east from the center of the intersection, but found none running north and south. He found sliding or scuff marks from the center of the intersection where the skid mark stopped and going off to the southwest corner of the intersection. While he made certain measurements, he did not make any measurements of the slide marks or of the distances the vehicles traveled after the collision. He did testify, however, that the Holtz truck rolled over during the procedure. He estimated that the Flory pickup stopped approximately 25 to 30 feet, and the Holtz truck 80 to 100 feet southwest of the center of the intersection. The truck was south of the pickup, facing mostly east and a little north. The pickup was facing north and west. The front of the pickup apparently struck the left side of the truck, just ahead of the back dual wheels. The truck's stock rack was broken and there was a dent in the steel band around the truck as well as some green paint from the pickup on the truck and on the frame at this point. Green paint was also found on the back part of the front fender of the Holtz truck, and some black tire marks, apparently from the truck, were found on the right front fender of the pickup.

The investigating officer took several pictures at the scene. These were received in evidence without objection. These photos were of the intersection and the approaches to it. They showed the position of the vehicles after the impact as well as the extent of the damage to each vehicle. They also indicated a large scuff mark in the southwest corner directly behind the pickup, the nature of the gravel, and the skid and slide marks. Except for the scuff mark, which is unexplained and is directly behind the pickup, the testimony is that there were no skid or slide marks between the southwest corner of the intersection where the slide marks end and the Holtz truck, which, under the investigating officer's estimate would be from 50 to 70 feet south. The photos show some marks which must be assumed to have no connection with the collision, as no explanation of them appears in the plaintiff's evidence.

Plaintiff alleges four assignments of error: First, the refusal to admit certain evidence by her expert witness; second, dismissal of her petition; third, permitting defendant's cross-petition to be continued as a separate cause of action; and fourth, the overruling of her motion for a new trial. We will discuss these assignments in the order listed.

Plaintiff called a University of Nebraska mechanical engineering professor who was qualified as an expert witness as to motor vehicle speeds. The witness testified that he had experience with the determination of speed and the calculation of physical happenings in automobile accidents. He employed two laws of physics, the law of conservation of energy and the law of conservation of momentum. He explained them as follows: 'The law of conservation of energy states that energy cannot be created or destroyed, with the exception of atomic energy; and the law of conservation of momentum states that the momentum of a body before a collision--or perhaps I should say the momentum of two bodies before collision is the same before and after collision; there is no change due to the collision.' He also testified that he had conducted experiments on gravel to determine the coefficient of friction...