Fuss v. Williamson

• Decision Date: 07 January 1955
• Docket Number: No. 33530,33530
• Parties: Harrlette FUSS, Appellee, v. Gene WILLIAMSON, Appellant.
• Court: Nebraska Supreme Court

Page 139

68 N.W.2d 139

159 Neb. 525

Harrlette FUSS, Appellee, v. Gene WILLIAMSON, Appellant.

No. 33530.

Supreme Court of Nebraska.

Jan. 7, 1955.

Rehearing Denied April 8, 1955.

See 69 N.W.2d 539.

Syllabus by the Court

1. A motion for a directed verdict must, for the purpose of a decision thereon, 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, and said 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 facts in evidence.

2. When a driver of an automobile who has entered an intersection for the purpose of negotiation a turn in the proper lane of traffic fails to see an automobile entering the intersection to the rear and not shown to be in a favored position, the presumption is that the driver of the approaching automobile will respect his right-of-way, and the question of his contributory negligence in proceeding to cross the intersection is a jury question.

3. Where the evidence is conflicting and from the facts and circumstances proved reasonable minds might draw different conclusions concerning any negligence or lack of negligence, as well as comparative or contributory negligence, then the trial court should submit such issues to the jury.

4. It is reversible error for the court to include, in its instructions to the jury, allegations of fact found in the pleadings but which have not been supported by any evidence.

5. The court should submit to the jury only such issues as find some support in the evidence, and where an issue is submitted without support in the evidence and is calculated to mislead the jury in the consideration of the facts to the prejudice of the complaining party, the judgment must be reversed.

Baylor, Evnen & Baylor, Lincoln, for appellant.

Davis, Healey, Davies & Wilson, Edwin F. Dosek, Lincoln, for appellee.

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

MESSMORE, Justice.

The plaintiff, Harriette Fuss, brought this action at law in the district court for Lancaster County to recover damages for personal injuries sustained by her due to a collision between an automobile driven by her and an automobile driven by the defendant. The cause was tried to a jury, resulting in a verdict in favor of the defendant. The plaintiff filed a motion for new trial which was sustained. From the order sustaining the motion for new trial, the defendant appeals.

For convenience we will refer to the parties as they were designated in the district court.

The defendant contends that the plaintiff was guilty of negligence and the defendant free of negligence, each as a matter of law, or that, in comparison, the negligence of the plaintiff was more than slight and the negligence of the defendant was less than gross, and accordingly the defendant's motion for directed verdict should have been sustained; and that as a matter of law the plaintiff was guilty of contributory negligence that would bar her right to recover in the instant case. This assignment of error requires an examination of the evidence.

The record discloses that the plaintiff, Harriette Fuss, on February 23, 1952, was using her husband's 1941 Packard four-door sedan. With her were two of her children, Daniel, Jr., age 7, and Marlene Kay, age 5, who were occupying the back seat of the automobile. The plaintiff had driven to Gold and Company's store and parked in front of the store on the south side of O Street, about a quarter of a block west of the intersection of O and Eleventh Streets in Lincoln, Nebraska. She backed the automobile out from in front of the store intending to return to her home. As she did so, she proceeded east on O Street in the south traffic lane and stopped at the traffic light which was red. Her automobile was the first car in line. When the traffic light turned green, she started to make a right turn to go south on Eleventh Street. At that time pedestrians were crossing the cross walk going east and west on O Street. The cross walks were marked, and were about 20 feet in width. She stopped her car immediately north of the cross walk on the south side of O Street. At that time she was in the west, or right hand lane, with her car facing southeast, a little more south than east. The front wheels of the car were about 2 feet north of the north marker for the east-west cross walk on O Street. She waited until the traffic light changed, and started to complete the right turn. She testified that there was a police officer in the center of Eleventh Street who motioned her to proceed. She started to move her car but failed to get completely across the cross walk when the collision occurred between the car she was driving and the defendant's car. When the collision occurred, she was 3 feet south of the south border of the cross walk, completely in the west lane of traffic, proceeding south. The left front fender and bumper of her car were hit by the right rear fender of the defendant's car. When her car was hit, it came to a stop. The defendant's car proceeded about a quarter of a block south on Eleventh Street after the accident. When his car stopped, it was in the west lane of traffic going south on Eleventh Street, headed directly south. The force of the impact caused the plaintiff to be shaken up, and threw her left arm against the left front door and her stomach into the steering wheel. The plaintiff's two children were thrown to the floor at the time of the impact. She was 3 months pregnant at the time of the accident, and was very nervous after the accident. She testified further that the defendant got out of his car and she got out of the car she was driving, and they met between the two cars. The defendant told her that he did not see her. She fixed the point of impact as 2 feet south of the pedestrian cross walk, in the middle of the dividing line of the two south-bound traffic lanes. She waited for the police officer to come and fill out an accident report, after which she proceeded home.

On cross-examination she testified that when she proceeded east on O Street, the right side of her car was 15 feet from the south side of O Street, and when she stopped at the red traffic light her automobile was about 2 feet from the rear of the cars parked on O Street, in the south lane of traffic. Where she drove up to the traffic light, she stopped 2 feet west of the cross walk running north and south on O Street on the west side of Eleventh Street. When the traffic light changed, she proceeded about 30 feet before she stopped her car. Her car was entirely off the north-south cross walk on the west side of Eleventh Street when she came to a stop at the intersection. The front of her car was about 2 feet from the north boundary of the east-west cross walk. The right side of her car was about 14 feet from the west curb of Eleventh Street, and the right front wheel of her car was about 1 foot from the north line of the east-west cross walk. The right front wheel of her car was a little east of the back end of the cars parked diagonally on the west side of Eleventh Street. She further testified that she did not at any time look to see if there was any car coming from the north, nor did she see any car ahead of her. She did not see any traffic on Eleventh Street. She testified that she would have looked if it had not been for the police officer who was directing traffic. She did not see the defendant's car until the collision occurred. He was in the west lane of traffic when he came to a stop, and the right side of his car was from 1 to 2 feet from the cars parked on the west side of Eleventh Street. The defendant's car did go straight south, but he had to turn to the right to get into the west lane. When the collision occurred, he was in the east lane of the two south-bound lanes on Eleventh Street, and the left front fender of her car was on the white line separating the two lanes for south-bound traffic on Eleventh Street. There is evidence by the plaintiff that when the collision took place the left front wheel of her car was about 23 feet east of the west curb of Eleventh Street. When the collision occurred, she immediately applied her brakes and kept them on until she came to a stop. She was driving 10 miles an hour, and by the use of her brakes could stop her car within the distance of 2 or 3 feet at that speed. She further testified that she believed the defendant said he was going between 15 and 20 miles an hour, but she was not sure; and that he told the police officer he was in second gear and was going between 15 and 20 miles an hour.

It was agreed by the parties that at the time of the accident the intersection of Eleventh and O Streets was a congested area.

The defendant testified that he owned a 1940 Ford coach. On the day in question he drove to the intersection of O and Eleventh Streets. His wife and small son were with him. He intended to let his wife out of the car at the middle, or east, door of Gold's store. As he came up to the traffic light on the north side of O Street, the light was red. There was a car ahead of him and one on his left. The car ahead of him went straight across the intersection. He was 15 to 20 feet behind that car, and proceeded south across the intersection. When he started his car after the traffic light turned green, he saw a car sitting at an angle at the southwest side of the intersection. At that time he was just past the stop light on the north side of O Street, before he got to the middle of the street. The automobile he saw was at a southeasterly angle, headed southeast. The left front wheel of that car was 14 to 15 feet from the west curb of Eleventh Street. There was nothing interfering in his lane of traffic. He could see straight ahead of him. The back end of the most northerly car parked at Eleventh and...