German v. Swanson, S-94-521

Decision Date26 July 1996
Docket NumberNo. S-94-521,S-94-521
Citation250 Neb. 690,553 N.W.2d 724
PartiesAnn GERMAN, temporary guardian for Elizabeth D. Pittman, Appellant and Cross-Appellee, v. Keith SWANSON, Appellee and Cross-Appellant.
CourtNebraska Supreme Court

Syllabus by the Court

1. Directed Verdict: Evidence: Appeal and Error. When a motion for directed verdict made at the close of all the evidence is overruled by the trial court, appellate review is controlled by the rule that a directed verdict is proper only where reasonable minds cannot differ and can draw but one conclusion from the evidence, and the issues should be decided as a matter of law.

2. Verdicts: Appeal and Error. Where a party has sustained the burden and expense of trial and has succeeded in securing a verdict on the facts in issue, that party has the right to keep the benefit of the verdict unless there is prejudicial error in the proceedings by which it was secured.

3. Motor Vehicles: Negligence. Under the range of vision rule, a motorist is deemed negligent as a matter of law if he or she operates a motor vehicle in such a manner as to be unable to stop or turn aside without colliding with an object in the motorist's path within his or her range of vision.

4. Pedestrians: Highways: Negligence. When a pedestrian crosses a street between intersections without looking at all, or looks straight ahead without glancing to either side, or is in a position where he or she cannot see and proceeds regardless of that fact, the situation ordinarily presents a question of fact for the fact finder.

5. Pedestrians: Motor Vehicles: Negligence: Juries. Where a pedestrian looks but does not see an approaching automobile, or sees it and misjudges its speed or distance from him, or for some other reason concludes that he could avoid injury to himself, a jury question is usually presented.

6. Verdicts: Juries: Appeal and Error. A jury verdict will not be set aside unless clearly wrong; it is sufficient if any competent evidence is presented to the jury upon which it could find for the successful party.

John F. Thomas and Aaron A. Clark, of McGrath, North, Mullin & Kratz, P.C., Omaha, for appellant.

Terry K. Gutierrez, of Schmid, Mooney & Frederick, P.C., Omaha, for appellee.

WHITE, C.J., and CAPORALE, FAHRNBRUCH, LANPHIER, WRIGHT, CONNOLLY, and GERRARD, JJ.

PER CURIAM.

This is an appeal from a jury verdict in a personal injury action. Ann German, temporary guardian for Elizabeth D. Pittman, alleged at trial that Keith Swanson was negligent in striking Pittman, a pedestrian, with his automobile. The jury returned a verdict for Swanson. German appeals and Swanson cross-appeals, each claiming that the trial court should have directed a verdict in his or her favor. We affirm.

Pittman was struck by Swanson's vehicle on the afternoon of January 24, 1991, as she crossed Farnam Street in the middle of the block between Turner Boulevard and 30th Street in Omaha. At that location, Farnam Street is a westbound one-way street with four lanes of traffic and one parking lane. The sky was clear and the streets were dry on that afternoon. Pittman was wearing a white coat and rust-colored shoes. She was walking to a convenience store located across the street from the Twin Towers apartment building where she resided. She was not in a crosswalk.

In her deposition, which was read at trial in lieu of her live testimony, Pittman testified that she looked for traffic to a distance of two blocks away before she began crossing. Specifically, Pittman stated, "I looked down there and saw no cars, but I wanted to get out of the way before some did come." From that point, she looked straight ahead as she crossed and did not look again in the direction of traffic until the moment she was struck by Swanson's car.

Swanson stated at trial that he did not see Pittman until she was in the lane immediately to the right of Swanson's vehicle. He testified that he did not recall why he failed to see Pittman step from the curb and walk across three lanes of traffic before she stepped in front of his vehicle. Swanson further testified that he did not brake when a car beside him braked, because he had not seen Pittman at that time. Swanson stated that he could not recall whether there was a car to his right blocking his vision in such a way as to keep him from seeing Pittman in time to stop. In a portion of his deposition, which was read at trial, Swanson stated that he had a clear field of vision ahead of him as he traveled down Farnam Street; he did not see Pittman step from the curb and begin crossing because he "wasn't really concerned looking at the very far right lane."

The car beside Swanson was an unmarked police cruiser driven by Sgt. Glenn Steimer of the Omaha Police Division. Steimer watched Pittman step from the curb and walk across Farnam Street. He applied his brakes to slow down when he reached a point about 30 yards from Pittman's path. While he was braking, Steimer saw Swanson's vehicle, which was traveling in the lane to the left of Steimer, continue forward and pass Steimer's vehicle. Steimer saw Pittman look up when Swanson's vehicle was about 5 feet from her, then watched as Swanson hit his brakes and struck Pittman. Steimer did not see Pittman look for westbound traffic before that moment. Steimer stated that Pittman did not suddenly jump out into his lane of traffic and that she had been in plain view on Farnam Street for "however long it takes for her to step from the curb and walk across three lanes of traffic."

After the close of all evidence, each party moved for a directed verdict; the trial court overruled both motions and submitted to the jury the issues of Swanson's negligence and Pittman's contributory negligence. The jury returned a verdict in favor of Swanson.

German assigns as error the failure of the trial court to direct a verdict on liability against Swanson. On cross-appeal, Swanson assigns error to the failure of the trial court to direct a verdict against German by finding Pittman contributorily negligent as a matter of law.

When a motion for directed verdict made at the close of all the evidence is overruled by the trial court, appellate review is controlled by the rule that a directed verdict is proper only where reasonable minds cannot differ and can draw but one conclusion from the evidence, and the issues should be decided as a matter of law. Hoeft v. Five Points Bank, 248 Neb. 772, 539 N.W.2d 637 (1995). Where a party has sustained the burden and expense of trial and has succeeded in securing a verdict on the facts in issue, that party has the right to keep the benefit of the verdict unless there is prejudicial error in the proceedings by which it was secured. Wolfe v. Abraham, 244 Neb. 337, 506 N.W.2d 692 (1993).

Under the "range of vision" rule, a motorist is deemed negligent as a matter of law if he or she operates a motor vehicle in such a manner as to be unable to stop or turn aside without colliding with an object in the motorist's path within his or her range of vision. Nickell v. Russell, 247 Neb. 112, 525 N.W.2d 203 (1995). Therefore, German argues that she was entitled to a directed verdict because Pittman was walking within Swanson's range of vision at the moment that Swanson struck Pittman. However, German misconstrues the range of vision rule. As its name suggests, the range of vision rule applies when the motorist either should have seen or saw the person or object and failed to stop in time to avoid collision. See id. We have recognized an exception to the range of vision rule when the person or object is not discernible, precluding the motorist from seeing the person or object in time to stop. See, id.; Edgerton v. Lawry, 235 Neb. 100, 453 N.W.2d 743 (1990). Reasonable minds could have properly concluded from the evidence that Steimer's vehicle obstructed Swanson's view, resulting in Swanson's not having sufficient time to avoid striking Pittman. Thus, the range of vision rule would not apply to the facts of this case.

When a pedestrian crosses a street between intersections without looking at all, or looks straight ahead without glancing to either side, or is in a position where he or she cannot see and proceeds regardless of that fact, the situation ordinarily presents a question of fact for the fact finder. See Gerhardt v. McChesney, 210 Neb. 351, 314 N.W.2d 258 (1982). Where a pedestrian looks but does not see an approaching automobile, or sees it and misjudges its speed or distance from him, or for some other reason concludes that he...

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