Greyhound Corp. v. Lyman-Richey Sand & Gravel Corp.

• Decision Date: 28 October 1955
• Docket Number: LYMAN-RICHEY,No. 33779,33779
• Citation: 161 Neb. 152,72 N.W.2d 669
• Court: Nebraska Supreme Court
• Parties: The GREYHOUND CORPORATION, a corporation, Appellant, v.SAND & GRAVEL CORPORATION, a corporation, Appellee.

Page 669

72 N.W.2d 669

161 Neb. 152

The GREYHOUND CORPORATION, a corporation, Appellant, v. LYMAN-RICHEY SAND & GRAVEL CORPORATION, a corporation, Appellee.

No. 33779.

Supreme Court of Nebraska.

Oct. 28, 1955.

Syllabus by the Court.

1. The trial court should eliminate all matters not in dispute and submit to the jury only the controverted questions of fact upon which the verdict must depend.

2. Where two conflicting instructions are given on a question, one containing an incorrect, and the other a correct, statement of the law, the latter will not cure the former.

3. One is required only to have his car under such reasonable control as to be able to avoid a collision with other vehicles whose drivers exercise due care. Complete control which is such as will prevent collision by the anticipation of negligence on the part of another in the absence of warning or knowledge is not required.

4. 'Reasonable control' by drivers of motor vehicles is such as will enable them to avoid collision with other vehicles operated without negligence in streets or intersections, and with pedestrians in the exercise of due care.

5. The verdict of a jury on conflicting evidence will not be disturbed on appeal unless it is clearly wrong.

6. As a general rule it is negligence as a matter of law for a motorist to drive an automobile on a highway in such a manner that he cannot stop in time to avoid a collision with an object within the range of his vision.

Fitzgerald, Hamer, Brown & Leahy, Omaha, for appellant.

Kennedy, Holland, DeLacy & Svoboda, L. J. Tierney, Omaha, for appellee.

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

WENKE, Justice.

The Greyhound Corporation brought this action in the district court for Douglas County against the Lyman-Richey Sand and Gravel Corporation. The purpose of the action is to recover damages caused to a bus owned and operated by the Interstate Transit Lines when one of the defendant's trucks ran into it. Plaintiff alleged the proximate cause of the accident, which caused the damages, was certain acts of negligence on the part of the driver of the truck. Defendant filed a counterclaim based on the same accident. It recovered a verdict thereon in the sum of $1,312.58. Plaintiff thereupon filed a motion for new trial and has perfected this appeal from the overruling thereof.

At the time of the accident the bus that was damaged was owned and being operated by the Interstate Transit Lines, doing business as Overland Greyhound Lines. Whatever rights the Interstate Transit Lines had against appellee by reason of the accident were acquired by appellant, as of January 1, 1952, when appellant's purchase of the Interstate Transit Lines became effective. Admittedly its rights thereunder were subject to any and all defenses and claims, if any, which appellee might have thereto.

The accident happened about 10:45 a. m. on June 1, 1950, on U. S. Highway No. 275, also known as the West Dodge road. It happened about one-half mile east of the Ten Mile corner located west of Omaha which is the intersection of the Ten Mile road and U. S. Highway No. 275. At the time of the accident L. M. Woods, then assistant superintendent of the Interstate Transit Lines, was giving the bus a trial run to see if it had any water or oil leaks. This was necessary because a factory rebuilt motor, transmission, and radiator had just been installed therein. It was not the intention of the driver of the bus to pick up any passengers during this trial run nor did he do so. In making the test run the bus was driven north on the Ten Mile road and then onto the West Dodge road at the point where the Ten Mile road and West Dodge road intersect. It proceeded to travel east toward Omaha in the south eastbound lane. This highway has a 42-foot paved surface with four lanes, two for eastbound and two for westbound traffic. As the bus entered onto the highway the driver of appellee's truck saw it do so. At that moment the truck, which was travelling east on the Dodge Street road, was just east of the main entrance to Boys Town. This point is about one-fourth mile west of the intersection. The truck, a K-8 International, was a 'semi' with a dump type body constructed on the trailer for the purpose of hauling sand and gravel. At the time the truck was hauling about 11 tons of gravel. Both bus and truck proceeded east in the south lane until the accident occurred at a point just west of the crest of a long gradual uphill grade which starts at a point about 500 feet east of the intersection. The accident occurred when the right front of the truck ran into and against the left rear of the bus, damaging both vehicles. The point of the impact was just south of the north line of the south lane for eastbound traffic. The foregoing is a general summary of when, where, and how the accident happened. Later in this opinion we shall set forth the evidence more in detail as it relates to the several errors assigned and herein discussed.

Appellant's counsel complains of several instructions given by the trial court and contends the giving thereof was error and prejudicial to his client's rights. The first of these is instruction No. 6 which, among other things, placed upon appellant the burden of establishing by a preponderance of the evidence the nature and extent of the damage to the bus when, as a matter of fact, the parties had stipulated thereto.

We said in Zancanella v. Omaha & C. B. St. Ry. Co., 93 Neb. 774, 142 N.W. 190, 192: 'The trial court should, as far as possible, eliminate all superfluous matters and submit to the jury only the controverted questions of fact upon which their verdict must depend. To submit to the jury matters not in issue, or to submit issues that are so wholly unsupported upon the one side, or so conclusively established upon the other, that reasonable minds could not differ with regard to them, is erroneous.'

And, in Myers v. Willmeroth, 151 Neb. 712, 39 N.W.2d 423, 426, we said: 'The trial court should eliminate all matters not in dispute and submit to the jury only the controverted questions of fact upon which the verdict must depend.' See, also, Bee Building Co. v. Weber Gas & Gasoline Engine Co., 86 Neb. 326, 125 N.W. 518.

In view of the parties' stipulation the issue of damages should not have been submitted to the jury. The trial court should have instructed the jury that the amount of the damages had been admitted. But every error does not necessarily result in prejudice so as to require a reversal. Instruction No. 7 given by the court submitted the same issue with reference to the appellee's right to recover on its counterclaim, although a similar stipulation had been entered into by the parties fixing the amount thereof. It is apparent the jury was not confused by these instructions for when it found for the appellee on the counterclaim it fixed the amount of the verdict in the exact amount that the damages to the truck had been stipulated to be. In view thereof we find the giving of these instructions to have been error without prejudice.

Appellant complains that the court was in error in giving instructions Nos. 12 and 12 1/2. These instructions are as follows:

No. 12. 'You are instructed that under the laws of the State of Nebraska, it is required that no person shall stop or suddenly decrease the speed of a vehicle without first giving an appropriate signal, as hereinafter stated.'

No. 12 1/2. 'You are instructed that under the laws of the State of Nebraska a person is bound to give a warning of his intention to stop a motor vehicle upon the highway by giving a hand signal and if a hand signal cannot be seen, then by an appropriate signaling device which would warn vehicles traveling of the intention of the driver of said vehicle to stop said vehicle.'

With reference to the duties of a driver in this regard the statutes then in force, so far as here material, provided as follows:

'No person shall stop or suddenly decrease the speed of a vehicle without first giving an appropriate signal * * * to the driver of any vehicle immediately to the rear, when there is opportunity to give such signal, * * *.' Section 39-7,111, R.R.S.1943.

'The signals required by sections 39-7,111 * * * shall be given either by means of the hand and arm or by a signal lamp or signal device of a type approved by the Department of Roads and Irrigation, but when a vehicle is so constructed or loaded that a hand and arm signal would not be visible both to the front and the rear of such vehicle the signals must be given by such a lamp or device.' Section 39-7,116, R.R.S.1943.

'All signals required by sections 39-7,111 * * * to be given by hand and arm shall be given from the left side of the vehicle in the following manner and such signal indicated as follows: (1) Left turn, arm and hand extended horizontally; (2) right turn, hand and arm extended upward; (3) stop or decreased speed, hand and arm extended downward.' Section 39-7,117, R.R.S.1943.

It will be observed that the statute does not provide that one is bound to give a hand signal but, on the contrary, provides that such signal may be given either by means of the hand and arm, or by a signal lamp or signal device of a type approved by the Department of Roads and Irrigation. This has particular application here for the driver of the bus admitted he gave no hand signal when he slowed down to stop but depended entirely on the signal lamps on the rear of the bus, which lamps were automatically activated by the application of the foot brake. These lamps were located on each side of the rear about 4 feet from the level of the road. We find instruction No. 12 1/2 placed a positive duty on the appellant which the law does not require and that, under the circumstances here shown, was prejudicial.

The court also gave instructions Nos. 15, 16, and 17 dealing with the same subject. These instructions, particularly No. 17...