Gorman v. Dalgas
| Decision Date | 18 March 1949 |
| Docket Number | 32521. |
| Parties | GORMAN v. DALGAS. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
1. When used as a measurement of distance, and nothing appears to the contrary, the commonly accepted meaning of a block is 300 feet.
2. When a person enters an intersection of two streets or highways he is obligated to look for approaching cars and to see those within that radius which denotes the limit of danger.
3. When a person fails to see an automobile not shown to be in a favorable position, the presumption is that its driver will respect his right-of-way and the question of his contributory negligence in proceeding to cross the intersection in a jury question.
4. Before a verdict can be properly directed in such a case the position of the defendant's car must be definitely located in a favored position, otherwise the question becomes one for the jury.
5. Where a person looks and does not see an approaching vehicle, or seeing one, erroneously misjudges its speed or distance, or for some other reason assumes that he can proceed and avoid a collision, the question of negligence is usually one for the jury.
6. Where two motorists approach an intersection at or about the same time the driver approaching from the right has the right-of-way and he may ordinarily proceed to cross, having a legal right to assume that his right-of-way will be respected by the other driver, but if the situation is such as to indicate to the mind of an ordinarily careful and prudent person in his position that to proceed would probably result in a collision, then he should exercise ordinary care to prevent an accident, even to the extent of waiving his right-of-way.
7. A municipality has no authority to enact or enforce any rule or regulation contrary to the provisions of section 39-751, R S. 1943.
A. J. Luebs, of Grand Island, for appellant.
Harold A. Prince and W. P. Lauritsen, both of Grand Island, for appellee.
Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.
This is an action to recover for personal injuries and property damage arising out of a collision of two automobiles in a street intersection. Issues were made and trial had to a jury, resulting in a verdict for the plaintiff. Defendant appeals from an order overruling a motion for judgment notwithstanding the verdict or, in the alternative, for a new trial. We affirm the judgment of the trial court.
We summarize plaintiff's evidence. The accident occurred in the city of Grand Island about 6 p. m. on a June evening. The weather was clear; it was fully daylight; and there were no unusual driving conditions. The two intersecting streets were 36 feet wide and the intersection a 36-foot square. The east and west street on which plaintiff was driving was practically level. The north and south street had a slight down grade. Plaintiff's car weighed approximately 3300 pounds and was 17 feet long.
Plaintiff was proceeding west on the right side of the street at a speed which she estimated to be 15 miles per hour. She expected her daughter and a niece to be walking west either on that street or one of the adjoining streets. Plaintiff was looking for these children. At a point 'about three car lengths' to the east of the intersection she looked to the north and saw the defendant's car proceeding south on the right side of the street at about the alley or 'about a half a block' away. She did not change her speed or direction. She looked to the south, then to the west, and again to the north when she saw defendant's car 'ready to hit my car.' She was not certain but thought in reaching for the brake she may have stepped on the gas. The point of collision was 21 feet west of the east line of the intersection and 16 feet south of the north line of the intersection, placing the collision in the northwest quarter of the intersection. Plaintiff's car was struck behind the right front wheel and about the front door. The pictures show a considerable area of the right side of the car pushed in toward the center and considerable glass broken. Plaintiff's car traveled 45 feet farther southwest, over a curb, and came to a stop partly turned up against a tree and headed north. Defendant's car turned to the west, moved in a circular direction, and came to a stop 16 feet from the point of impact. Defendant's car made distinct skid marks for 9 feet before the impact.
We summarize defendant's evidence as to the matters wherein it differs from that of the plaintiff. Defendant was driving south at a speed of about 20 miles per hour. His car weighed less than 2800 pounds and was 15 feet in length. As he aproached the intersection he looked to the west, and when about 3 car lengths or 45 to 50 feet from the intersection he looked to the east. He saw plaintiff's car coming 'exceedingly fast'--about 40 miles per hour--and about 6 car lengths or 90 feet from the intersection. The driver was looking to the south. After she entered the intersection she looked up, made no change in speed, swerved to the left, and hit the left side of his car. Defendant did not change his course previous to the collision. He watched plaintiff's car coming the whole distance and when he saw that plaintiff did not see him he put on his brakes and came 'practically' to a stop before the collision. The left headlight, fender, grille, and bumper of defendant's car were broken and pushed 'straight across' toward the center. There are no pictures of defendant's car. The cost of repair was $20. Defendant's car remained in position at approximately the point of impact except that the front end was pushed to the southwest.
Plaintiff alleged six particular grounds of negligence. The trial court submitted the case to the jury as to two grounds of alleged negligence of the defendant: (1) That he failed to have his car under such control that he could avoid a collision with plaintiff's automobile; and (2) that he failed to yield the right-of-way to the plaintiff notwithstanding the fact that she was first to enter the intersection.
Defendant's first assignment of error is that plaintiff was guilty of negligence more than slight, and sufficient to bar her recovery as a matter of law, and that the trial court erred in overruling a motion made for a directed verdict at the close of plaintiff's case and at the close of all the evidence. Defendant argues that he, approaching the intersection from the right, had the right-of-way; that there is no evidence that plaintiff entered the intersection first, and none from which such an inference can be drawn; and that plaintiff was neglight in entering the intersection with knowledge that his car was approaching and without watching for it.
Defendant's contention is that there is no evidence as to the location of his car when plaintiff first saw him, in that plaintiff's testimony that he was about 'half a block' away is meaningless because there is no standard length of a block. It is a matter of common knowledge that in the settlement of the Plains states, of which Nebraska is one, urban areas were platted generally in squares or blocks of 300 feet on each side, and that, when used as a measurement of distance and nothing appears to the contrary, the commonly accepted meaning of 'a block' is 300 feet. It requires no evidence to show what that meaning is in this state. See State v. Berard, 40 La. Ann. 172, 3 So. 463. Without objection or explanation one of defendant's witnesses used the word 'block' as a measurement of distance in this case. Plaintiff's testimony then that defendant's car was about half a block away translated into feet means about 150 feet away. Thus while plaintiff was traveling a distance of 51 feet to reach the intersection, defendant's car, according to plaintiff's testimony, would have had to travel a distance almost 3 times that to reach the intersection first. We think the plaintiff's evidence sunfficient to take the case to the jury as to which car entered the intersection first.
The rules in this state are: * * * when a person enters an intersection of two streets or highways he is obligated to look for approaching cars and to see those within that radius which denotes the limit of danger. * * * If he fails to see an automobile not shown to be in a favored position, the presumption is that its driver will respect his right of way and the question of his contributory negligence in proceeding to cross the intersection is a jury question....
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