Halliday v. Raymond
| Decision Date | 19 April 1946 |
| Docket Number | 32040. |
| Citation | 22 N.W.2d 614,147 Neb. 179 |
| Parties | HALLIDAY v. RAYMOND. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
1. 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.
2. Where different minds may draw different conclusions from the evidence in regard to negligence, the question should be submitted to the jury, but where the evidence shows beyond reasonable dispute that the plaintiff's negligence is more than slight as compared with the defendant's negligence, then it is proper for the trial court to instruct the jury to return a verdict for the defendant.
3. Negligence is never presumed, and cannot be inferred from the mere fact that an accident happened.
4. Circumstantial evidence can be sufficient to sustain a verdict depending solely thereon for support if the circumstances proved by the evidence are of such a nature and so related to each other that the conclusion reached is the only one that can fairly and reasonably be drawn therefrom.
5. It is the duty of the driver of an automobile to exercise reasonable care in its operation, and where pedestrians are numerous and traffic is congested, the degree of care required must be commensurate with the danger reasonably to be anticipated.
6. A pedestrian, having obeyed the traffic signals and entered a pedestrian crosswalk at a street intersection ordinarily has a duty to look to the right and left for approaching traffic but not to the rear.
Warren C. Schrempp and Jack A. Thorpe, both of Omaha, for appellant.
Wear Boland & Nye, of Omaha, for appellee.
Heard before SIMMONS, C. J., and PAINE, CARTER, MESSMORE, YEAGER CHAPPELL, and WENKE, JJ.
Ray Halliday as plaintiff, brought this action in the district court for Douglas County against Wallace B. Raymond, as defendant. The purpose of the action is to recover damages for personal injuries arising out of an accident that happened on October 7, 1944, at the intersection of Fifteenth and Dodge Streets in the city of Omaha, Nebraska. From an order sustaining the defendant's motion for a directed verdict and dismissing his action, after motion for a new trial had been overruled, the plaintiff appeals.
Appellant and appellee will respectively be referred to as plaintiff and defendant.
In view of the manner in which the action was disposed of, we must apply the following rule in reviewing the record: "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.' Moncrief v. Interstate Transit Lines, 129 Neb. 168, 261 N.W. 163, 164. See, also, Grantham v. Watson Bros. Transportation Co., 142 Neb. 362, 6 N.W.2d 372, 9 N.W.2d 157.' Kline v. Metcalfe Const. Co., 146 Neb. 389, 19 N.W.2d 693, 696. And, from the application of the above rule, determine which part of the following is applicable: .' Whittaker v. Hanifin, 138 Neb. 18, 291 N.W. 723, 725.
The Municipal Code of the City of Omaha in force at the time provided as follows: 'The driver of any vehicle shall yield the right-of-way to a pedestrian crossing the street within any marked crosswalk or within any unmarked crosswalk at the end of a block, except at intersections where the movement of traffic is being regulated by police officers.' Section 55-4.1, art. IV, Municipal Code of the City of Omaha.
Section 55-4.2, art. IV, Municipal Code of the City of Omaha.
The intersection here involved has 100-foot streets consisting of 20-foot walks on each side and a 60-foot surfaced thoroughfare between the sidewalk curbs. The walks on each side are extended across the thoroughfare by a marked crosswalk of the same width. Each corner has a traffic signal consisting of green, amber, and red lights and both pedestrian and automobile traffic are controlled thereby. There is a marked center line down the middle of the thoroughfare of both Fifteenth and Dodge Streets.
Plaintiff testified that the afternoon of October 7, 1944, was warm and bright; that at about 3:30 p. m. he, as a pedestrian, arrived at the southwest corner of Fifteenth and Dodge Streets with the purpose of going north on the west side of Fifteenth Street; and that he observed the traffic signal for going in that direction was red and so temporarily waited at the curb near the west side of the crosswalk until the light had changed.
Other evidence shows that defendant was driving his car north on Fifteenth Street at the same time and because of the red signal brought his car to a stop just to the right of the center line of Fifteenth Street at the south side of the intersection.
Plaintiff further testified that when the traffic light changed to green so that traffic could proceed north and south that he, and the other pedestrians waiting at the curb, proceeded to go across; that he traveled in but near the west side of the crosswalk; that as he left the curb he looked both east and west and did so several times while crossing; that his eyesight was good and his vision unobstructed but he saw no cars in either direction; and that his hearing was good but he heard no sound of a horn.
He further testified that suddenly his feet were knocked out from under him and as he was in the air he tried to grab the fender over the wheel but it was smooth and he couldn't catch hold; that his next recollection was that he was lying on the pavement just north of the center line of Dodge Street and the defendant's car was directly in front of him; that the car was standing at an angle with the left front wheel at about the west side of the crosswalk but about three feet north of the center line of Dodge Street while the left rear wheel was within the crosswalk and on the center line of Dodge Street thus placing the car in a southeast to northwest traveling alignment.
The plaintiff's position on the pavement with reference to the car shows he was lying about one foot from the car but parallel to it with his feet about one foot behind the left front wheel.
When he stood up to talk with the defendant, who was sitting at the wheel of his car, he placed his weight on his right foot and had pain therein; that his right leg, beginning at a point halfway between the knee and ankle and extending to the ankle, had a tire or rub burn about one-half inch in width; and that the right trouser leg from just below the knee had dust marks that were 'square, oblong shape, with lines between' that looked very much like the tread of a tire.
Of course, Bixby v. Ayers, 139 Neb. 652, 298 N.W. 533, 539.
In this case the...
To continue reading
Request your trial