Hessler v. Bellamy
| Decision Date | 22 March 1935 |
| Docket Number | 29223. |
| Parties | HESSLER v. BELLAMY. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
1. Where undisputed physical facts demonstrate that collision out of which injuries arose was not caused by negligence of defendant, the evidence is not sufficient to support a verdict for plaintiff.
2. If the evidence essential to a recovery by plaintiff is clearly disproved by the physical facts and conditions, the trial court should direct a verdict against him.
Appeal from District Court, Scotts Bluff County; Carter, Judge.
Action by Conrad Hessler against Richard C. Bellamy. Judgment for defendant, and plaintiff appeals.
Affirmed.
Raymond & Raymond, of Scottsbluff, for appellant.
Morrow & Morrow, of Scottsbluff, for appellee.
Heard before GOSS, C. J., and ROSE, GOOD, EBERLY, DAY, and PAINE JJ.
The plaintiff brought this action to recover damages for the wrongful death of his wife caused by an automobile accident. This case has been tried three times in the district court. The jury returned a verdict in favor of the plaintiff upon the two former trials. Motions for new trial having been sustained in both instances, the third trial resulted in a directed verdict in favor of defendant.
The issues are set out by the pleadings. The petition alleges that on January 13, 1933, between 7 and 8 o'clock p. m., the plaintiff was driving his automobile westward on the paved public highway, six miles east of Scottsbluff, when he met a car owned and driven eastward by the defendant; that at the time he was driving in a lawful and careful manner on the right-hand side of the pavement and immediately before the collision he had reduced the speed of his car until it was almost stopped. The petition also alleges that the Hupmobile driven east by the defendant upon the same highway, which at the time and place was covered with a light snow and ice, was driven carelessly and negligently at a high, dangerous and illegal rate of speed and without due regard to the condition of the highway and the traffic and the rights of others using the road; that he drove his car on the left-hand side of the pavement and crashed head-on, but slightly from plaintiff's left. The defendant filed an answer in which he denies that he was guilty of any negligence at the time and place of the accident and alleges that the sole and proximate cause of the collision between the automobiles and the damages resulting therefrom was the negligence of the plaintiff in driving his car on the left-hand side of the pavement. At the close of all the testimony, the defendant moved for a directed verdict which was sustained.
The appellant assigns as error the ruling of the trial judge in directing a verdict in favor of defendant after the introduction of all the evidence. The determination depends upon the place where the collision occurred. If there is testimony before the jury by which a finding in favor of the plaintiff could be upheld, the court is not at liberty to disregard it and direct a verdict against him. Bainter v. Appel, 124 Neb. 40, 245 N.W. 16.
The only question of negligence supported by any evidence is that the defendant was driving on the wrong side of the paved road at the time of the collision. Does the evidence on this question require that the issue be submitted to the jury? We think not. The plaintiff, the defendant, and five young men riding in defendant's car were the only eyewitnesses of the accident. The plaintiff testified that he was driving on the north (his right) side of the paved road; that he saw the defendant's car approaching for about one-quarter mile; that it was swaying and collided headon with his car a little to the left of the front end; that, when he saw it coming, he drove closer to the north side and was almost stopped at the time of the accident.
On the other hand, the defendant and his five eyewitnesses testified that his car was driven straight down the south (his right) side of the pavement; that he...
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