Fulcher v. Ike
| Decision Date | 27 November 1942 |
| Docket Number | 31399. |
| Citation | 6 N.W.2d 610,142 Neb. 418 |
| Parties | FULCHER v. IKE. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
1. It is the duty of an invited guest in an automobile driven by another, with knowledge of approaching danger, to exercise ordinary care to warn the driver of the danger, unless to a reasonably careful, cautious and prudent person it appears that the warning would be of no avail or go unheeded, or that the driver observed or should have observed the danger as well as the guest, and for failure to give such warning the guest would be chargeable with contributory negligence.
2. It is the duty of an invited guest in an automobile driven by another, with knowledge of approaching danger, in the exercise of ordinary care to protest to the host if there is time and opportunity, unless it reasonably appears that such protest would go unheeded or would be of no avail, and for failure so to do the guest would be chargeable with contributory negligence.
3. In a jury case where different minds may draw different conclusions or inferences from the adduced evidence, or if there is a conflict in the evidence, the matter at issue must be submitted to the jury, but where the evidence is undisputed, or but one reasonable inference or conclusion can be drawn from the evidence, the question is of law for the court.
4. "As a general rule it is negligence as a matter of law for a motorist to drive an automobile so fast on a highway at night that he cannot stop in time to avoid a collision with an object within the area lighted by his lamps." Roth v. Blomquist, 117 Neb. 444, 220 N.W. 572 58 A.L.R. 1473.
5. The gist of negligence is failure to exercise the care of a reasonable and prudent person under a given set of circumstances.
6. The test of negligence is made by submission of the facts, if they are not admitted or if not more than one inference or conclusion may be drawn from the evidence, to a jury to determine whether or not the person charged with negligence failed to exercise the care, caution and prudence required of a reasonably careful, cautious and prudent person under the given circumstances.
7. The general rule with exceptions, which provides that it is negligence as a matter of law for a motorist to drive an automobile so fast on a highway at night that he cannot stop in time to avoid a collision with an object within the area lighted by the lamps on the automobile, should embrace in the exceptions all situations wherein reasonable minds may differ on the question of whether or not the operator of the automobile exercised the care, caution and prudence required of a reasonably, careful, cautious and prudent person under the circumstances of the particular situation.
Rosewater Mecham, Shackelford & Stoehr, of Omaha, and Stewart Stewart & Whitworth, of Lincoln, for appellant.
Baylor, TouVelle & Healey, of Lincoln, for appellee.
Heard before SIMMONS, C. J. and EBERLY, CARTER, MESSMORE and YEAGER, JJ.
This is an action for damages for personal injuries by Frances Fulcher, plaintiff and appellee, against Alden Davis Ike, defendant and appellant.
The action was tried to a jury in the district court for Lancaster county, Nebraska. At the conclusion of the submission of evidence by the parties, on motion of the plaintiff, the court resolved all issues of negligence and of contributory negligence in favor of the plaintiff and withdrew such issues from the consideration of the jury, and submitted only the question of the amount of damages to be returned in favor of the plaintiff, and instructed the jury accordingly. A verdict was returned in favor of plaintiff for $4,000, and judgment was entered thereon and the defendant has appealed.
At the time of the accident, which is the basis of the cause of action, plaintiff was a passenger in an automobile then being operated by one Jesse M. Polson in an easterly direction on a highway known as the S. Y. A. highway, in Lancaster county, Nebraska. The particular point on the highway was approximately 11 miles west of Lincoln, Nebraska. She charges that the defendant negligently drove an automobile which he was operating into the rear end of the automobile in which plaintiff was riding, causing the injuries and damages which she claims she sustained.
The defendant by answer denied that he was guilty of any negligence. The answer affirmatively charged that the plaintiff at the time of the accident was engaged in a joint enterprise with Polson and the other occupants of the automobile in which she was riding, and that the accident was the direct and proximate result and was solely caused by the joint and concurring negligence of the plaintiff, of Polson and one Leo Bert Hafer.
The defendant assigns as errors, among others, that the court erred in refusing to submit the question of negligence of the defendant to the jury; that the court erred in refusing to submit the question of contributory negligence of the plaintiff to the jury, and substantially in refusing to submit the question of negligence of Polson and Hafer as being the proximate cause of the accident.
These assignments of error require an analysis of the pertinent material evidence adduced by the parties. On certain phases of the evidence there is no dispute. An accident did occur in which the parties to this action were involved, and it occurred on what is known as the S. Y. A. highway, in Lancaster county, Nebraska, approximately 11 miles west of Lincoln, Nebraska, at about 9 p.m. on November 24, 1940, and in the accident plaintiff was injured. The plaintiff was a passenger and at the time of the accident was riding in the back seat of an automobile then being operated in an easterly direction on the right side of the center line of the highway by Jesse M. Polson. The accident came about because the defendant drove the automobile which he was operating into the rear end of the automobile in which plaintiff was riding. The automobile in which plaintiff was riding was, by the force of the collision, propelled about 183 feet eastward and into a ditch on the north side of the highway. At the time of the accident darkness had fallen and it was somewhat cloudy with slight fog. Both automobiles were properly lighted at the time of the accident. The accident occurred approximately 134 feet east of the crest of a hill, which hill descended to the eastward with a grade varying from about .3 to about 5.5 per cent. between the crest and the point of the accident.
The defendant contended, and he adduced evidence to support his contention, that at the time of the accident he was driving at a rate of speed from 40 to 50 miles per hour, and that because of the hill which elevated his lights above the automobile in which plaintiff was riding he was unable to see the said automobile until the distance between the two automobiles was about 80 feet, which distance was insufficient to allow him to stop without a collision. Defendant also adduced evidence to the effect that the automobile in which plaintiff was riding was stopped on the highway and that an automobile operated by Leo Bert Hafer, headed also in an easterly direction and a few feet to the north of and parallel with the Polson automobile, was also stopped, and that the two automobiles blocked the highway. All of this evidence is in sharp conflict except that it is admitted that the Polson and Hafer automobiles were headed eastward and were parallel as claimed. The plaintiff's evidence is to the effect that the Polson and Hafer automobiles were moving eastward at a speed variously estimated at from 15 to 20 miles an hour when the accident occurred. Also, the evidence of plaintiff indicates that the defendant, with proper lighting of his automobile, could have, in the exercise of proper care, seen objects over a much greater distance than the intervening space of 134 feet between the two automobiles when defendant's automobile came over the crest of the hill.
As has already been pointed out, the defendant urges that the court erred in failing to submit to the jury claimed contributory negligence of the plaintiff. It is urged that as an invited guest plaintiff was charged with the duty to warn the driver of danger observable to her, and for failure so to do she was chargeable with contributory negligence. As a rule of law it is the duty of an invited guest in an automobile driven by another, with knowledge of approaching danger, to exercise ordinary care to warn the driver of the danger, unless to a reasonably careful, cautious and prudent person it appears that the warning would be of no avail or go unheeded, or that the driver observed or should have observed the danger as well as the guest, and for failure to give such warning the guest would be chargeable with contributory negligence. Also it is the duty of an invited guest, with knowledge of approaching danger, in the exercise of ordinary care to protest to the host if there is time and opportunity, unless...
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