Herman v. Lee

• Decision Date: 12 February 1982
• Docket Number: No. 43435,43435
• Parties: Virgie J. HERMAN, Appellant, v. Lois J. LEE et al., Appellees.
• Court: Nebraska Supreme Court

Page 56

316 N.W.2d 56

210 Neb. 563

Virgie J. HERMAN, Appellant, v. Lois J. LEE et al., Appellees.

No. 43435.

Supreme Court of Nebraska.

Feb. 12, 1982.

Syllabus by the Court

1. Legislative Power: Highways: Municipal Corporations. The state has inherent power to establish, maintain, and control the highways of the state, including those within corporate limits of municipalities. While the Legislature may properly delegate certain powers over streets, alleys, and highways to a municipality, it retains the power to legislate with reference thereto when a matter of statewide policy and concern are involved.

2. Municipal Corporations: Highways. Any power a municipality derives over its streets is strictly statutory and is not exclusive.

3. Statutes: Municipal Ordinances. Where there is a direct conflict between a city ordinance and a state statute, the statute is the superior law.

4. Statutes: Municipal Ordinances. A city ordinance is inconsistent with a statute that is contradictory in a sense that the two legislative provisions cannot coexist.

5. Municipal Ordinances: Municipal Corporations: Statutes. The Omaha city ordinance regulating funeral processions was a reasonable and valid exercise of the city's police power under Neb.Rev.Stat. § 39-697(1)(c) (Reissue 1978), and does not conflict with Nebraska's right-of-way statutes.

6. Motor Vehicles: Right-of-Way. Intersection right-of-way. Intersection right-of-way is a qualified, not absolute, right to proceed through an intersection, exercising due care, in a lawful manner in preference to another vehicle.

7. Motor Vehicles: Expert Witnesses. An opinion of vehicular speed is proper, provided a sufficient foundation is laid to show the expertise of the witness, as well as specific knowledge of the underlying facts to deal with the question in issue.

8. Expert Witnesses: Appeal and Error. No exact standard is possible for fixing the qualifications of an expert or skilled witness, and the ruling of a trial judge receiving or excluding an opinion will be reversed on appeal only when a clear abuse of discretion is shown.

Eric W. Kruger and J. Patrick Green, Omaha, for appellant.

Hansen & Engles, Omaha, for appellees.

Heard before KRIVOSHA, C.J., and BOSLAUGH, McCOWN, CLINTON, BRODKEY, and HASTINGS, JJ.

PER CURIAM.

This is an action for personal injuries sustained as the result of a collision between the automobiles of appellant, Virgie J. Herman, and appellee Lois J. Lee at the intersection of 20th and Martha Streets in Omaha, Nebraska, on February 26, 1979. From a jury verdict in favor of the appellee and the subsequent order overruling the motion for new trial, appellant appeals. We affirm.

The Herman car was traveling south on 20th Street and entered the intersection of 20th and Martha Streets on a green traffic signal. The Lee car was traveling west on Martha Street and was the 10th to 13th car in a funeral procession consisting of approximately 30 cars. The Lee vehicle had its lights on and also displayed a plastic hood ornament designating it as a vehicle in a funeral procession. The procession was being escorted by an off-duty police officer driving an escort vehicle containing red flashing lights. At the time of the collision, the escort vehicle was 2 to 4 blocks beyond the 20th and Martha Streets intersection.

The speed of both vehicles, which vehicle entered the intersection first, and the distance between the Lee vehicle and the preceding vehicle in the procession were all matters in dispute and properly for the jury's determination.

Lee testified that she was the 10th to 13th car in the funeral procession and was following the immediately preceding car by one car length, or approximately 20 feet. She also testified that she was first in the intersection, observed the Herman vehicle approaching from nearly one-half block away, and that she had virtually stopped when the Herman vehicle entered the intersection at approximately 50 miles per hour, striking the front portion of her vehicle. Lee stated that she was traveling approximately 3 miles per hour at the time of the collision.

Herman's testimony contradicted these claims. Herman testified that she was driving 30 to 35 miles per hour in a 30-mile-per-hour speed zone and entered the intersection first and was struck by the Lee vehicle. Herman attempted to offer opinion testimony by the police officer who investigated the accident. An offer of proof indicated that the officer would have testified that the Herman vehicle was traveling 20 to 25 miles per hour at the time of the collision.

It is uncontradicted that the Lee vehicle was part of a funeral procession that was passing through the 20th and Martha Streets intersection where the accident occurred, and that the Lee vehicle was positioned midway in the procession.

Herman assigns three errors. First, she claims the trial court erred in refusing opinion testimony of an investigating officer relative to the speed of her vehicle; second, the trial court erred in admitting in evidence the Omaha municipal code relating to funeral processions; and third, the trial court erred in embodying the ordinance into a jury instruction.

The crucial question presented on this appeal is whether the city ordinance is in conflict with the general laws of this state, and therefore we will discuss it first.

Appellant contends that the Omaha municipal code, § 35.12.030, is in conflict with Neb.Rev.Stat. §§ 39-609 and 39-614 (Reissue 1978).

The appellee, on the other hand, contends that the ordinance and the statutes do not conflict. The appellee further contends that even if the ordinance and the statutes are conflicting, the city of Omaha was expressly authorized to enact the ordinance under Neb.Rev.Stat. § 39-697 (Reissue 1978).

The state has inherent power to establish, maintain, and control the highways of the state, including those within corporate limits of municipalities. While the Legislature may properly delegate certain powers over streets, alleys, and highways to a municipality, it retains the power to legislate with reference thereto, even in home rule cities, such as Omaha, when a matter of statewide policy and concern is involved. Omaha Parking Authority v. City of Omaha, 163 Neb. 97, 77 N.W.2d 862 (1956).

It has been said before that the city streets are part of the highway system of the state. The concentration of traffic in metropolitan cities is a matter of general rather than strictly local concern. The state is primarily concerned when through traffic passing through a municipality becomes congested. When a traffic problem occurs which is of statewide concern, the state Legislature is the body which has authority to alleviate the problem. The choosing of the means and the methods of accomplishing such purpose is a legislative function. Its justification stems directly from the exercise of the police power. The primary object of the Nebraska Rules of the Road, as set out in Chapter 39 of the Nebraska Revised Statutes, is to facilitate and make safe the use of the highways. Any power a municipality derives over its streets is strictly statutory and is not exclusive. The power of a municipality over its streets is subject to the superior control of the state except where the Constitution prevents its doing so.

Although a home rule charter must be consistent with and subject to the Constitution and laws of this state, it has been held that a provision of a home rule charter takes precedence over a conflicting state statute in instances of local municipal concern, but when the Legislature enacts a law affecting municipal affairs which are of statewide concern, the state law takes precedence over any municipal action taken under the home rule charter. See Omaha Parking Authority v. City of Omaha, supra.

This view is consistent with Arrow Club, Inc. v. Nebraska Liquor Control Commission, 177 Neb. 686, 693-94, 131 N.W.2d 134, 139 (1964), wherein this court said: "Where there is a direct conflict between a city ordinance and a state statute, the statute is the superior law.... A city ordinance is inconsistent with a statute if it is contradictory in a sense that the two legislative provisions cannot coexist.... Generally, an ordinance cannot prohibit what the Legislature has expressly licensed, authorized, or permitted."

We believe the Omaha city ordinance and the statutes cited by the appellant are not contradictory and can coexist. Section 35.12.030 of the ordinance provides: "It shall be unlawful for the driver of any vehicle to drive between vehicles comprising a funeral or other authorized procession, while they are in motion, and when such vehicles are conspicuously designated. Funerals shall be designated by the use of funeral flags or lighted headlamps. This provision shall not apply at intersections where traffic is controlled by a police officer."

Section 39-609(1) provides: "The driver of any vehicle shall obey the instructions of any traffic-control device applicable thereto placed in accordance with the provisions of sections 39-601 to 39-6,122, unless otherwise directed by a law enforcement officer, subject to the exceptions granted the driver of an authorized emergency vehicle in sections 39-601 to 39-6,122."

The other statute claimed to be inconsistent with the city ordinance is § 39-614(1)(a), which provides: "Vehicular traffic facing a circular green signal may proceed straight through or turn right or left unless a sign at such place prohibits either such turn, but vehicular traffic, including vehicles turning right or left, shall yield the right-of-way to other vehicles and to pedestrians lawfully within the intersection or an adjacent crosswalk at the time such signal is exhibited ...." Appellant contends that the city ordinance cannot modify the right-of-way provided by these two statutes.

The Legislature has stated in Neb.Rev.Stat. § 39-603(3) (Reissue 1978): "The provisions of sections 39-601 to...