Haight v. Nelson

• Decision Date: 03 July 1953
• Docket Number: No. 33358,33358
• Citation: 42 A.L.R.2d 1,157 Neb. 341,59 N.W.2d 576
• Parties: , 42 A.L.R.2d 1 HAIGHT v. NELSON.
• Court: Nebraska Supreme Court

Page 576

59 N.W.2d 576

157 Neb. 341, 42 A.L.R.2d 1

HAIGHT v. NELSON.

No. 33358.

Supreme Court of Nebraska.

July 3, 1953.

Syllabus by the Court.

1. As a general rule it is negligence, as a matter of law, for a motorist to drive an automobile so fast on a highway at night that he cannot stop in time to avoid a collision with an object within the area lighted by his lights.

2. The basis of this rule is that a driver of an automobile is legally obligated to keep such a lookout that he can see what is plainly visible before him and that he cannot relieve himself of that duty. And, in conjunction therewith, he must so drive his automobile that when he sees the object he can stop his automobile in time to avoid it.

3. The existence or presence of smoke, snow, fog, mist, blinding headlights, or other similar elements which materially impair or wholly destroy visibility are not to be deemed intervening causes but rather as conditions which impose upon the drivers of automobiles the duty to assure the safety of the public by the exercise of a degree of care commensurate with such surrounding circumstances.

4. However, on unlighted streets and highways, and those lighted but where the light is obstructed, we have made exceptions to this general rule when the nature of the object or its condition, such as color, dirt, et cetera, in relation to the highway or road, affected its immediate visibility or when, because of the lights of oncoming traffic, the driver's attention is distracted or his vision impaired and his opportunity for immediate discernment thereby affected. In suchy cases we have held that the issue of the driver's negligence, if any, and the degree thereof is for the jury.

5. It is reversible error for the trial court to permit plaintiff, on his case in chief, to show that defendant is indemnified from loss by an insurance company where such proffered evidence is not relevant to any material issue in the case.

6. Ordinarily where it appears from the evidence of a witness that, although he saw the car in movement immediately before the accident, but he had no reasonable length of time, movement, in distance, or other means to use as a basis upon which to formulate an opinion as to the speed thereof, he should not be allowed to testify in regard thereto.

7. Section 39-757, R.R.S.1943, prohibiting parking or the leaving of any vehicle, whether attended or unattended, upon the paved or improved or main traveled portion of any highway, outside of the business or residence district, when it is practicable to leave such vehicle off the paved or improved or main traveled portion of the highway, does not, by an express exception contained therein, apply to any automobile which is disabled, while on a paved or improved highway, in such manner and to such extent that it is impossible to avoid stopping and temporarily leaving such vehicle in such position.

8. In an action where there is any evidence which will support a finding for a party having the burden of proof the trial court cannot disregard it and direct a verdict against him.

9. Negligence is the omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do.

George J. Marshall, Riverton, for appellant.

William H. Meier, Minden, for appellee.

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

WENKE, Justice.

This is a tort action brought in the district court for Kearney County by Earl Haight against Vernon Nelson. It arises out of the fact that sometime between 11:15 and 11:30 p. m. on the night of June 21, 1951, defendant drove his car into the rear of plaintiff's car while the latter was standing on U. S. Highway No. 6 at a point approximately 6 3/4 miles west of Minden, Nebraska, resuslting in serious damage thereto. Several issues were raised by the pleadings but we shall mention them only in connection with our discussion of the different contentions made by the parties as they relate thereto. The cause was tried and submitted to a jury and it returned a verdict in favor of the defendant. Plaintiff thereupon filed an alternative motion asking for either a judgment notwithstanding the verdict or for a new trial. This motion having been overruled plaintiff appealed and defendant has cross-appealed.

The following facts are either admitted by the pleadings or conclusively established by the evidence: That appellant and his family, consisting of his wife and an 11-year-old son, had, on June 21, 1951, been to Lexington, Nebraska, to attend a meeting; that about 10 p. m. that evening they left Lexington in their car, a 1949 Hudson 2-door brougham, which appellant was driving to return to their home at Riverton, Nebraska; that the car was apparently in good condition as no previous difficulty had been experienced therewith; that as they were returning to Riverton by way of Kearney, Nebraska, at a point approximately 1 1/2 miles east of the intersection of State Highway No. 44 and U. S. Highway No. 6, which intersection is to the south of Kearney, appellant's car, due to mechanical failure, came to a stop on the oil mat surfaced area of Highway No. 6; that appellee, his family, and some relatives had been to Holdrege, Nebraska, on that day; that they left Holdrege that evening to return to their home at Minden, Nebraska; that they were traveling in appellee's car, a 1949 Mercury 2-door sedan, which appellee was driving; that this car was apparently in good working condition; that it had been raining hard; that although this rain had generally ceased it was still misting and raining slightly requiring both cars to have their windshield wipers working; that visibility for driving was satisfactory; that the oil mat surface of Highway No. 6, which at this point was 24 feet wide, was wet; that Highway No. 6 at the place of the accident is straight and level; that appellee was driving from 40 to 50 miles an hour; that very shortly after appellant's car came to a stop appellee's car ran into the rear thereof causing substantial damage thereto as well as to appellee's car; and that injury was also caused thereby to some of the occupants of appellee's car.

Appellant's principal contention is that the court erred in not directing a verdict for him and in failing to submit to the jury only the question of the amount of the damage that his car had suffered. This is on the theory that the facts of this case bring it within the principle that:

'As a general rule it is negligence, as a matter of law, for a motorist to drive an automobile so fast on a highway at night that he cannot stop in time to avoid a collision with an object within the area lighted by his lamps.' Buresh v. George, 149 Neb. 340, 31 N.W.2d 106.

'The driver of a motor vehicle has the duty to keep a proper lookout and watch where he is driving even though he is rightfully on the highway and has the right-of-way or is driving on the side of the highway where he has a lawful right to be. He must keep a lookout ahead or in the direction of travel or in the direction from which others may be expected to approach and is bound to take notice of the road, to observe conditions along the way, and to know what is in front of him for a reasonable distance.' Murray v. Pearson Appliance Store, 155 Neb. 860, 54 N.W.2d 250, 255.

As stated in Buresh v. George, supra: 'The basis of this rule is that a driver of an automobile is legally obligated to keep such a lookout that he can see what is plainly visible before him and that he cannot relieve himself of that duty. And, in conjunction therewith, he must so drive his automobile that when he sees the object he can stop his automobile in time to avoid it.'

And in applying this principle: 'The existence or presence of smoke, snow, fog, mist, blinding headlights, or other similar elements which materially impair or wholly destroy visibility are not to be deemed intervening causes but rather as conditions which impose upon the drivers of automobiles the duty to assure the safety of the public by the exercise of a degree of care commensurate with such surrounding circumstances.' Murray v. Pearson Appliance Store, supra.

In determining this issue we apply the following rule in our consideration of the evidence: 'A motion for a directed verdict must, for the purpose of a 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, and said party is entitled to have every controverted fact resolved in his favor, and to have the benefit of every inference that can reasonably be deduced from the facts in evidence.' Buresh v. George, supra.

There is evidence from which the jury could have found that appellant's car was of a dull dark green color; that it was spattered and begrimed from the wet oil mat surface over which it had been traveling; that it came to a stop in the east bound or south lane of travel of U. S. Highway No. 6; that it had no lights on it as it stood there; that its color caused it to blend into the color of the wet oil mat surface; that appellee's light extended for at least 100 feet; that appellee was looking and watching ahead for traffic on the highway but did not see appellant's car until it was only about 50 feet ahead of him; that he was unable to turn and avoid hitting it, although there was plenty of room to the left or north thereof in which to pass; and that, because of the foregoing, appellee's car ran into the rear of appellant's car very shortly after it came to a stop.

We have qualified or made exceptions to the rule hereinbefore set out. In Buresh v. George, supra, we said: 'However, on unlighted streets and highways, and those lighted but where the light is obstructed, we have made exceptions to this general rule when the ...