Gernandt v. Beckwith, 33791
| Decision Date | 01 July 1955 |
| Docket Number | No. 33791,33791 |
| Citation | 160 Neb. 719,71 N.W.2d 303 |
| Parties | John F. GERNANDT, Appellant, v. Thomas W. BECKWITH, Appellee. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
1. In a case where there is no bill of exceptions and no facts for review the only question presented is whether or not the pleadings support the judgment.
2. When two motor vehicles collide in an ordinary city or country intersection and there is no evidence of a substantial difference in the speed of the vehicles, it is generally self-evident that they approached the intersection at approximately the same time under the rule of right-of-way at intersections under section 39-728, R.R.S.1943.
Schrempp & Lathrop, Omaha, for appellant.
Wear, Boland & Mullin, Omaha, for appellee.
Heard before SIMMONS, C. J., CARTER, YEAGER CHAPPELL, WENKE, and BOSLAUGH, JJ., and FLORY, District Judge.
This is an action brought by plaintiff and appellant against defendant and appellee for personal injuries and property damages sustained by plaintiff as the result of an intersection collision at Thirty-seventh and R Streets in Omaha between plaintiff's motorcycle and defendant's automobile. Defendant was on plaintiff's right but plaintiff claims to have entered the intersection first. The allegations of the pleadings are hereinafter set forth.
At the conclusion of plaintiff's evidence, defendant moved that the case be dismissed for want of evidence, which motion was sustained by the court and the jury discharged and case dismissed. Motion for new trial was filed by plaintiff, and on the 1st day of February 1955, the motion for new trial was overruled. On the same date notice of appeal to the Supreme Court was filed by the plaintiff.
No extension of time was asked for or granted for the preparation, service, and settling of the bill of exceptions. The bill of exceptions was not settled by the trial judge until the 3d day of June 1955, and on the same date it was filed in the district court for Douglas County and in this court. This court will take judicial notice of the fact that the bill of exceptions was not settled within the time provided by statute, and therefore cannot be considered on this appeal. Bednar v. Bednar, 146 Neb. 726, 21 N.W.2d 438.
As we may not review the evidence, the only question remaining is whether or not the pleadings support the order of dismissal. Fred Egger Sons v. Welsh, 160 Neb. 124, 69 N.W.2d 366.
Plaintiff alleges that when his motorcycle had reached a point at the center of the intersection defendant's automobile collided with him, and further alleges that both Thirty-seventh and R Streets are paved streets intersecting at right angles.
Defendant in his answer alleges...
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...appeal when an extension of 40 days only has been obtained for the purpose of reducing the exceptions to writing. In Gernandt v. Beckwith, 160 Neb. 719, 71 N.W.2d 303, 304, this court stated: 'This court will take judicial notice of the fact that the bill of exceptions was not settled withi......
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...at approximately the same time. Appellee had the right-of-way and was entitled to cross the intersection first. Gernandt v. Beckwith, 160 Neb. 719, 71 N.W.2d 303, 304, states: 'When a collision occurs in the ordinary city or country intersection, unless there is evidence that one of the veh......