Herman v. Firestine

• Decision Date: 25 January 1946
• Docket Number: 31994.
• Citation: 21 N.W.2d 444,146 Neb. 730
• Parties: HERMAN v. FIRESTINE.
• Court: Nebraska Supreme Court

21 N.W.2d 444

146 Neb. 730

HERMAN v. FIRESTINE.

No. 31994.

Supreme Court of Nebraska

January 25, 1946

Syllabus by the Court.

1. In a property damage case arising out of a collision between an automobile and a transport, where the evidence is in sharp conflict, it presents a question for a jury to determine under proper instructions by the court.

2. If there is competent testimony before the jury by which a finding in favor of the plaintiff can be upheld, the court is not at liberty to disregard it and direct a verdict against him.

Richard O. Johnson and Perry, VanPelt & Marti, all of Lincoln for appellant.

Chambers Holland & Locke, of Lincoln, for appellee.

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

PAINE Justice.

In an action for damages arising out of a collision between an automobile and a transport, a judgment was entered upon the verdict in the sum of $3,242.24. Motion for new trial being overruled, the defendant appealed to this court.

Among the errors relied upon for reversal, it is charged that the court erred in not sustaining the defendant's motion to dismiss the petition when the plaintiff had rested, and in overruling a similar motion at the conclusion of all the testimony. It is charged that the verdict was contrary to law, not sustained by the evidence, and is contrary to the instructions given by the court. Reliance is placed by the defendant upon alleged error in the giving of each of the 19 instructions making up the court's charge to the jury, and also in the refusal to give ten instructions offered by the defendant.

The facts surrounding the collision may be briefly stated as follows: The plaintiff, Mrs. Mabel C. Herman, residing at Fremont, Nebraska, has operated the Herman Oil Transport Company of that city since her husband's death in 1936, and was the owner of a 1940 D-40 International tractor, pulling a 1940 Fruehauf trailer, the tractor being worth $1,438, and the trailer $2,179.48, for the destruction of which plaintiff prays judgment.

The trailer was carrying over 4,000 gallons of kerosene, and was driven by George Blazer, who had been driving for the plaintiff for about six months. He was driving south on Tenth Street in Lincoln on Sunday morning, April 2, 1944, about 9:30, following the defendant, John Firestine, who was driving a 1938 Plymouth coach, for the destruction of which defendant in his cross-petition prays judgment for $750.

The defendant's wife was sitting in the front seat with her husband, and he was driving at about 15 to 20 miles an hour, going to visit their daughter, whose husband was in the army. The daughter lived at 2441 South Tenth Street, which was located on the west side of Tenth Street. The defendant testified that there were no cars approaching him from the south, and when he got about opposite his daughter's home he turned slightly to the left in order to turn back to the right and go in the driveway at his daughter's residence. When he turned to the left a distance of about five feet, bringing him near to the center of the street, as testified to by Mrs. Frances Murphy, the driver of the tractor-trailer, following closely behind, attempted to go past him on the right hand side, very close to the curb. At that moment the defendant, turning sharply to his right to go into the driveway, drove into the side of the trailer, and a collision occurred.

The map, exhibit No. 1, shows that the dual wheels on the right rear of the trailer went up over the curb exactly at the north side of the driveway at 2441 South Tenth Street, and ran in the parking straight ahead at an angle to the street for 67.6 feet, and when it came to rest the Plymouth coach was jammed under the left side of, and about half way back in, the trailer. The door on the right hand side of the Plymouth coach had been thrown open, and Mrs. Firestine was thrown out and was under the trailer.

Gail Curtin, who lives in the next house north of defendant's daughter's house, testified that he was the first person to reach the scene. He said that when he arrived Mrs. Firestine was getting out from under the trailer and Mr. Firestine was getting out of his Plymouth on the left hand side. Curtin said he yelled to the driver of the transport to turn off his motor, and at about the same time Mr. Firestine got back into his Plymouth and shut off its motor, but in spite of these precautions the kerosene took fire within two or three minutes of the collision and burned for over an hour, with a fire so hot that people could not approach anywhere near the wreck. Both the Plymouth and the transport were entirely worthless after the fire.

From this brief statement it will be seen that no personal injury to anyone is involved in this action. Additional facts, for the better understanding of what occurred, might include the statement that Tenth Street carries a heavy traffic; that it is 42 feet wide between the curbs, but is not a four-lane road; that the curbing is 21.15 feet out from the sidewalk line; that the place where the right dual wheels of the transport stopped is some 15 feet north of where the north curb of Lake Street would be if it extended across Tenth Street. Lake Street is only 25 feet wide between the curbs, and comes into Tenth Street from the east, but ends in Tenth Street. There was a 50-foot lot, with another house located upon it, south of the driveway defendant intended to turn into, and the next 50-foot lot to the south, through which Lake Street would go if it was extended, was a vacant lot.

Defendant charges that the refusal of the court to give defendant's requested instruction No. 4 was reversible error. By this instruction No. 4, the court was asked to tell the jury that the attempt of the driver of the transport to pass to the right of defendant's automobile when it had made a turn to the left was prima facie negligence on the part of plaintiff's driver.

The traffic ordinances of the city of Lincoln provide that large or heavily-loaded vehicles shall be driven as near the right curb as possible, and shall pass another vehicle proceeding in the same direction on its left side, but 'Nothing in this section shall be construed to prohibit a driver overtaking and passing upon the right of another vehicle which is making...