Gutoski v. Herman
| Decision Date | 31 January 1947 |
| Docket Number | 32115. |
| Citation | 25 N.W.2d 902,147 Neb. 1001 |
| Parties | GUTOSKI v. HERMAN. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
1. A motion for a directed verdict must for the purpose of decision thereon be treated as an admission of the truth of all material and relevant evidence submitted on behalf of the party against whom the motion is directed.
2. The credibility of witnesses and the weight to be given their testimony are questions for the jury.
3. In a law action it is error for the trial court to direct a verdict for either of the parties on an issue of fact on which the evidence is conflicting. Such issue should be submitted to the jury for their determination.
4. Where evidence is in conflict and such that reasonable minds may draw different conclusions therefrom, the questions of negligence and comparative and contributory negligence are for the determination of the jury.
Wear Boland & Nye, of Omaha, for appellant.
Brown Crossman, West, Barton & Fitch and Gross & Welch, all of Omaha, for appellee.
Heard before SIMMONS, C. J., CARTER, MESSMORE, YEAGER, CHAPPELL, and WENKE, JJ., and WILSON, District Judge.
This is a law action brought by the administratrix of the estate of Peter P. Gutoski to recover damages sustained by the deceased's widow and minor children as a result of an accident caused by a collision between a gasoline transport owned by the defendant and driven by one of her employees, and a Chevrolet automobile driven by Peter P. Gutoski who lost his life in the accident. At the close of all the evidence the defendant moved for a directed verdict. This motion was sustained by the trial court. Upon the overruling of the motion for new trial, plaintiff appealed.
For convenience, the appellant will hereinafter be referred to as the plaintiff, and the appellee as the defendant.
The plaintiff contends that the trial court erred in refusing to submit the case to the jury. This contention raises the question as to the sufficiency of the material, competent, and relevant evidence introduced by the litigants to determine whether the same makes a case to be submitted to a jury. We set forth in substance as much of the pleadings and the evidence disclosed by the record as we deem necessary to determine this appeal.
The plaintiff's petition alleged negligence on the part of defendant's driver, in substance as follows: That he operated the gasoline transport at a dangerous and excessive rate of speed in violation of the laws of Nebraska; in failing to have the transport under proper control while operating it in a westerly direction upon the wrong side of the highway; by sudeenly turning the transport from the north side of the highway to the south side thereof directly into and against the automobile occupied by the deceased; and failing to seasonably apply the brakes thereof and bring it to a stop before colliding with the automobile occupied by the deceased.
The defendant's answer alleged that the driver of the transport drove west in the outside or north lane of the highway in a careful and prudent manner; that immediately prior to the collision Gutoski either backed or drove his car into the north lane of the highway directly in the path of the westbound transport, then started eastward in the north lane of the highway and collided with the transport; and that there were no lights on Gutoski's car.
The reply denied any acts of negligence on the part of Gutoski.
A brief description of the vicinity where the accident occurred shows Dodge Street west of Omaha is approximately 42 feet wide paved in four lanes, the two outside lanes being concrete and the two center lanes brick. Starting at a point and proceeding west from the west track of the Chicago and Northwestern Railway to a bridge over Pappio Creek is a distance of 330 feet. The bridge extends from this point west 100.8 feet, and on each side thereof are guardrails. The guardrail on the south side of the bridge extends east 42 feet. Two or three feet south of the edge of the pavement is the Miller mail box which is 243 feet distant from the west track of the railroad. The distance from this mail box to the east end of the south guardrail is 62 feet. From the west end of the bridge to the center line of a roadway which runs south off of Dodge Street is 256 feet. Off of this roadway is the Rose Lodge. In close proximity to this road is a brick paved road on the north side of Dodge Street, running in a northwesterly direction. On this road is located Mary's Clubhouse Inn. On the northeast corner of the intersection of this brick road is the Tourist Village filling station. Approximately 100 feet east of the bridge over Pappio Creek is located (Miller's) Wishbone Hut, which sets 47 feet back from the north edge of the Dodge Street pavement. In front of the Wishbone Hut is a graveled parking space.
The accident occurred on the Dodge Street road at a point approximately 200 feet west of the Chicago and Northwestern Railway tracks, in close proximity to the entrance of the Wishbone Hut. The surface of the highway is approximately level for a distance of a few hundred feet to the east and to the west of the point where the accident occurred.
During the evening of April 14, 1944, the employees of the organization where Mr. Gutoski was employed entertained members thereof who were about to enter the service of the armed forces of the United States. After leaving the entertainment early in the morning of April 15, 1944, Mr. Gutoski and a companion, also an employee of the organization, after visiting a place in east Omaha drove west on Dodge Street and apparently to the places designated as the Rose Lodge and Mary's Clubhouse Inn, for refreshments. The places were about to close, so they were not served. After they left Mary's Clubhouse Inn they proceeded to Dodge Street. It is the defendant's contention that they proceeded to the Wishbone Hut, as heretofore described and located.
The gasoline transport consisted of a 1940 International tractor and Freuhauf trailer, and at the time was loaded with 4,450 gallons of gasoline. After loading the transport, the driver thereof traveled to the vicinity of Seventy-fifth and Dodge Streets and proceeded west on Dodge Street in the north lane of the highway, stopped at the railroad tracks, put the transport in fourth gear, and continued west at a speed of 25 miles per hour. The vehicle was lighted; and the weather was foggy and misty. The driver testified that it was not raining. After proceeding approximately 200 feet or more west from the railroad tracks and arriving in the vicinity of the Wishbone Hut, the accident occurred.
The driver of the transport described the accident as follows: '* * * all at once I saw a car about four feet from me, coming out * * * on the north side of the highway, and I knew it was going to hit me, and the first thing I thought, it would be in the back, and so I turned to the left as quick as I could to throw the trailer, and all at once there was a big crash on the right side of my truck and then I didn't know no more; something hit me and knocked me unconscious and the next thing I knew I was laying in the bottom of the creek * * *.' He regained consciousness when someone took hold of his foot, and again became unconscious, and subsequently regained consciousness in the hospital. There were no lights on the car, they came on all at once. The car was headed to the southeast and it came so fast he could not tell what kind of a car it was. It was on the north side of the highway, moving southeast, like it was trying to get across the highway. When he saw the lights on the car he swerved the transport to the left and threw on the air brake on the trailer and the common brakes on the tractor. The car struck along the cab of the truck, that is, the right side thereof, on the north side of the highway. He did not drive on the south side of the highway at any time, and the only time he drove out of the north lane was when he made his left turn in an attempt to avert the accident. The crash rendered him unconscious, the transport thereafter proceeded in a south and west direction, knocking down the Miller mail box, striking and twisting the south guardrail of the bridge, and falling into Pappio Creek. He saw no cars behind or in front of him in the vicinity of the accident prior to the time the accident occurred. He did not know whether Gutoski had backed out of the parking at the Wishbone Hut or pulled out forward, or what happened.
An employee of the defendant who was familiar with the trailer which was painted white, testified that after the accident there was a streak of blue paint about two feet long on the right panel of the trailer. Gutoski's Chevrolet was painted blue.
The evidence of the companion who was with Gutoski at the time the accident occurred, as offered by the defendant, was that they 'went right off Dodge Street and I think it was the Wishbone'; that they did not get anything to eat at the Wishbone Hut; that Gutoski was backing out but she could not remember whether it was clear out on Dodge Street, was almost positive they were not across Dodge Street. They did not stop in the Wishbone Inn. She had a headache all day and wanted to go home. This testimony is from a statement taken by the deputy county attorney shortly after the accident and transcribed by a court reporter. At the trial she testified she did not remember, except she remembered they backed out of a place where there was a white fence.
The defendant contends that the foregoing evidence clearly proves the accident happened on the north side of the highway, because it shows that the deceased and his companion were at the Wishbone Hut immediately before the accident and were...
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