Hartman v. Brady, 41652

• Citation: 201 Neb. 558,270 N.W.2d 909
• Decision Date: 25 October 1978
• Docket Number: No. 41652,41652
• Parties: Jack HARTMAN, Appellee, v. Faye N. BRADY, Appellant.
• Court: Supreme Court of Nebraska

Page 909

270 N.W.2d 909

201 Neb. 558

Jack HARTMAN, Appellee, v. Faye N. BRADY, Appellant.

No. 41652.

Supreme Court of Nebraska.

Oct. 25, 1978.

Syllabus by the Court

1. In determining the sufficiency of the evidence to sustain the verdict, the evidence must be considered most favorably to the successful party, every controverted fact must be resolved in his favor and he must have the benefit of all inferences reasonably deducible therefrom.

2. A driver of a motor vehicle about to enter a street or highway protected by stop signs is required to come to a full stop as near the right-of-way line as possible before driving onto such street or highway. After having stopped, such driver shall yield the right-of-way to any vehicle which is approaching so closely on the favored highway as to constitute an immediate hazard if the driver at the stop sign moves his vehicle into or across such intersection. It is such a driver's duty to look both to the right and to the left and to maintain a proper lookout for the safety of himself and others traveling on the streets.

3. The right of a motorist on a favored street to assume that a vehicle on a nonfavored street will be brought to a stop before it enters the intersection and will not proceed until the motorist has passed neither permits the motorist on the favored street to claim the right-of-way when he is too distant from the intersection to be entitled to it nor relieves him of the duty of exercising due care to avoid an accident.

4. A violation of a statute regulating the use and operation of motor vehicles upon the highways, including a speed regulation, does not in and of itself constitute negligence, but any such violation is evidence which may be considered with all other facts and circumstances of the case in determining whether or not the violation is negligent.

5. A party is ordinarily entitled to the benefit of the testimony of other witnesses in contradiction of his own, whenever his own is not of the character of a judicial admission and concerns only some evidential or constituent circumstance of his case.

Richard J. Spethman, Omaha, for appellant.

Larry E. Welch of McGroarty, Welch & Langdon, P. C., Omaha, for appellee.

Heard before SPENCER, C. J., Pro Tem., BOSLAUGH, McCOWN, CLINTON, BRODKEY and WHITE, JJ., and KUNS, Retired District Judge.

CLINTON, Justice.

This is an action for damages arising out of a collision of two automobiles at the intersection of 72nd Street and Bedford Avenue in the city of Omaha which occurred on November 6, 1975, at about 7 p. m. At the intersection where the collision occurred, 72nd Street is a four-lane arterial street which runs north and south and is protected by stop signs. At the time of the collision, the plaintiff was traveling south on 72nd Street in the inside lane. The defendant was traveling east on Bedford Avenue and was crossing 72nd Street after having stopped at the stop sign on the west side of the intersection. After trial, the jury found for the plaintiff on his petition, and judgment was entered accordingly.

The defendant appeals and makes various assignments of error which may be summarized by the following contention: The evidence is insufficient to establish any negligence on the part of the defendant; and it does show that the plaintiff was guilty of negligence which, as a matter of law, should bar recovery. Accordingly, the defendant's motion for directed verdict should have been granted.

The evidence was such that, taking the view most favorable to the successful party, the jury could have found the following facts. The defendant brought her car to a stop at the stop sign on the west side of 72nd Street, looked to the north on 72nd Street, and saw the headlights of two automobiles approaching about a block or more away. The headlights which the defendant saw indicated there was a car in each of the southbound traffic lanes. Defendant immediately turned her head to look south on 72nd Street without watching the lights approaching from the north long enough to make any estimate of the speed of the vehicles, observed no vehicles approaching from the south, and proceeded into the intersection without again looking north. The defendant did not see the plaintiff's vehicle at any time after the initial observation.

The plaintiff did not observe the defendant's vehicle until it began to move from the stop sign. Although he applied the brakes of his car, he was unable to stop. His car struck the defendant's vehicle in the center of its left side, the collision occurring in the eastern-most lane for southbound vehicles on 72nd Street.

The plaintiff had entered 72nd Street a considerable distance north of Bedford Avenue. He was intending to turn right at Maple Street, which is south of Bedford Avenue. As he was proceeding south and before reaching Bedford Avenue, he wanted to change to the right-hand lane; but another vehicle in the right-hand lane kept changing speeds, apparently to prevent him from making a lane change. The plaintiff varied his speed in attempting to change lanes, alternately slowing down to about 35 miles per hour and then speeding up to as much as 50 or 65 miles per hour. The speed limit on 72nd Street at Bedford Avenue is shown in the evidence to be 40 or 45 miles per hour. Shortly before the accident, the plaintiff was traveling at the higher speed of 50 to 65 miles per hour but began to slow down when his car was about 150 feet north of the Bedford Avenue intersection. He saw the defendant's car begin to enter the intersection when his own car was 75 to 100 feet from the intersection. The plaintiff's car left about 60 feet of skid marks.

A disinterested eyewitness testified that he saw the...