Fuss v. Williamson

• Decision Date: 08 April 1955
• Docket Number: No. 33530,33530
• Citation: 160 Neb. 141,69 N.W.2d 539
• Parties: Harrlette FUSS, Appellee, v. Gene WILLIAMSON, Appellant.
• Court: Nebraska Supreme Court

Page 539

69 N.W.2d 539

160 Neb. 141

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

No. 33530.

Supreme Court of Nebraska.

April 8, 1955.

Baylor, Evnen & Baylor, Lincoln, for appellant.

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

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

WENKE, Justice.

In his motion for rehearing appellant calls our attention to the fact that in the court below he obtained a verdict and therefore, as far as any issue of contributory negligence is concerned, is entitled to have the evidence adduced considered by this court in the following manner: "In testing the sufficiency of 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.' (Remmenga v. Selk, 150 Neb. 401, 34 N.W.2d 757.)' Simcho v. Omaha & C. B. St. Ry. Co., 150 Neb. 634, 35 N.W.2d 501, 505. With this we agree.

In view of the foregoing he then contends we were in error in our former opinion in holding as follows: 'In 'i' of instruction No. 1, the court instructed the jury as follows: 'She failed to give any warning that the right of way would not be yielded to the defendant or of her intention to drive into the path of and against the automobile of the defendant.'

'It is the contention of the plaintiff that she was under no duty to give a warning to the defendant that she was not yielding the right-of-way to him or that she was intending to drive south on Eleventh Street, for the reason that she was driving in a direct course south thereon, or was in such a position as to negotiate the turn to the south on Eleventh Street when the defendant first saw her when he stopped at the north side of the intersection of Eleventh and O Streets. She had no duty to observe to her rear that the defendant was crossing the intersection. The defendant was behind her, and she would be to the right of the defendant in the favored position. The plaintiff's car was not proceeding at such a speed that would require her to forfeit the right-of-way. We believe the giving of the above constituted prejudicial error.' [159 Neb. 525, 68 N.W.2d 145.]

On cross examination appellee testified that when she stopped her car in the intersection, because of pedestrians passing over Eleventh Street on the cross walk, that her car had not entered the west traveling lane of Eleventh Street but had stopped short thereof, and that when the lights turned green so she could turn right onto Eleventh Street, she did so and entered into the west driving lane of Eleventh Street without looking to the north or left. She admits that if she had looked to the north she would have seen appellant's car and would ahve waited for it to go by. She says she did not look to her left, or north, because a policeman directing traffic at the intersection motioned her to go ahead and, when he did so, she relied entirely on his directions and did not either look or give any signal when she started ahead and entered the west lane for traffic on Eleventh Street.

Appellant testified he stopped north of O Street to wait for the signal to turn green so he could go ahead; that his car was in the west or outer lane for traffic and the second car in that lane; that there were also cars stopped in the inner lane; that when the signal changed to green the cars in both lanes started ahead and he followed the car immediately ahead of him; that the cars in both lanes traveled south on Eleventh Street across the intersection; that he saw appellee's car stopped in the intersection; that it was stopped so the front had not entered the west traveling lane of Eleventh Street; that the car ahead of him proceeded south in the west traveling lane, passing in front of appellee's car; that he did the same, appellee not having started to drive her car forward as he...