Heavican v. Holbrook

• Decision Date: 10 February 1972
• Docket Number: No. 38021,38021
• Citation: 194 N.W.2d 208,187 Neb. 814
• Parties: John B. HEAVICAN, Appellant, v. Eugene Arthur HOLBROOK, Appellee.
• Court: Nebraska Supreme Court

Page 208

194 N.W.2d 208

187 Neb. 814

John B. HEAVICAN, Appellant, v. Eugene Arthur HOLBROOK, Appellee.

No. 38021.

Supreme Court of Nebraska.

Feb. 10, 1972.

Syllabus by the Court

1. It is the duty of the trial court to instruct the jury upon the issues presented by the pleadings and supported by the evidence.

2. A party must plead and prove the existence of a municipal ordinance in order to have the benefit of the ordinance.

3. In the absence of a statute or ordinance, the meaning to be given to a traffic control signal is that which a reasonably prudent motorist would understand and apply.

4. As a general rule, a motorist who enters an intersection when the signal is in his favor is entitled to continue through the intersection even though the signal changes after he has entered the intersection.

5. A motorist intending to make a left turn at an intersection, where left turns are controlled by a separate traffic signal light, may enter the intersection on a favorable signal and complete the turn even though the signal changes after he has entered the intersection.

6. A motorist intending to make a left turn, who would otherwise have the right-of-way over through traffic, may lose the right-of-way by stopping in the intersection and yielding the right-of-way to through traffic before completing the turning movement.

Lathrop, Albracht & Dolan, S. J. Albracht, Michael P. Cavel, Omaha, for appellant.

Joseph K. Meusey, Fraser, Stryker, Marshall & Veach, Omaha, for appellee.

Heard before WHITE, C.J., and SPENCER, BOSLAUGH, SMITH, McCOWN, NEWTON, and CLINTON, JJ.

BOSLAUGH, Justice.

This action arose out of an automobile accident. The jury found that neither party should recover. The plaintiff appeals. There is no cross-appeal. The assignments of error relate to the instructions to the jury.

The accident happened at about 9:15 p.m., on April 4, 1968, at the intersection of Dodge Street and Seventy-second Street in Omaha, Nebraska. Dodge Street runs east and west. Seventy-second Street runs north and south. The weather was clear and the streets were dry. The plaintiff was driving north intending to proceed on Seventy-second Street through the intersection. The defendant was driving south intending to turn left and proceed east on Dodge Street.

Both streets have multiple lanes, including left turn lanes, with opposing traffic separated by islands or medians. The intersection is controlled by traffic signals with lights which appear in this sequence: Red; red with left turning green arrow; green; and yellow.

On the south side of the intersection there are four lanes approaching the intersection. The extreme right lane is for traffic intending to turn right. The next two lanes are for through traffic intending to proceed north on Seventy-second Street. The fourth lane is for traffic intending to turn west onto Dodge Street. On the north side of the intersection there are three lanes approaching the intersection, a left-turning lane and two regular traffic lanes.

The amended petition alleged that the defendant was negligent in failing to keep a proper lookout; in failing to keep his automobile under proper control; in turning in front of the plaintiff without ascertaining whether it was safe to do so; and in making a left turn contrary to section 35.28.150(e) of the Omaha ordinances.

The answer alleged that the plaintiff was negligent in failing to maintain a proper lookout; in failing to maintain reasonable control of his automobile; in entering the intersection when the traffic light was red; in failing to yield the right-of-way to the defendant; and in operating his vehicle at an excessive speed.

The plaintiff testified that he approached the intersection in the through-traffic lane second from the right; that the traffic light was green; that there was another automobile in the same lane 2 car lengths or more ahead of him; that after he had entered the intersection the defendant's automobile 'darted' in front of him; that he swerved to the right and didn't have time to apply his brakes; that the impact occurred; and that he was injured.

The defendant testified that he approached the intersection from the north in the left-turn lane; that he used his left turn signal to signal his intention to make a left turn; that there were two or three cars ahead of him; and that the traffic light was red. When the traffic light changed to the green arrow, the automobiles ahead of the defendant entered the intersection and made left turns. The defendant followed these automobiles into the intersection and then stopped because the traffic light had changed to green for through traffic. After the traffic light had changed to red for northbound traffic, the defendant started to make his turn. The defendant first saw the plaintiff's automobile when it was 5 or 10 feet away. The front of the defendant's automobile was then in the through-traffic lane first from the right for northbound traffic. The evidence was in conflict and presented questions for the jury.

The plaintiff contends that the trial court erred in instructing the jury in reference to section 35.28.150 of the Omaha ordinances without also instructing in reference to the other ordinances relating to left turn traffic signals.

The general rule is that a party must plead and prove the existence of a municipal ordinance in order to have the benefit of the ordinance. Perrine v. Hokser, 158 Neb. 190, 62 N.W.2d 677; Chicago Lumber Co. of Kearney v. Gibson, 179 Neb. 461, 138 N.W.2d 832. Here the plaintiff failed to plead or prove the ordinances relating to left turn traffic signal lights. As a consequence, the trial court had no duty to instruct the jury in reference to the ordinances.

The plaintiff further contends that the...