Hilferty v. Mickels

• Decision Date: 18 November 1960
• Docket Number: No. 34840,34840
• Citation: 106 N.W.2d 40,171 Neb. 246
• Parties: Charles HILFERTY and Helen Hilferty, Appellants, v. Ray MICKELS, Appellee.
• Court: Nebraska Supreme Court

Page 40

106 N.W.2d 40

171 Neb. 246

Charles HILFERTY and Helen Hilferty, Appellants, v. Ray MICKELS, Appellee.

No. 34840.

Supreme Court of Nebraska.

Nov. 18, 1960.

Syllabus by the Court

1. The speed of an automobile may be unlawful even though it is within the statutory prima facie limits if it is unsafe or if it is greater than is reasonable and prudent under the existing circumstances.

2. A charge of speed of an automobile as negligence may, as any other specification of negligence, be found to exist from circumstantial evidence if it indicates with reasonable certainty the truth of the charge.

3. Circumstantial evidence concerning an accident may be sufficient to overcome direct evidence as to the speed of an antomobile involved therein.

4. The observance of a practice or custom which is contrary to a statute on the subject does not prevent a motorist from being guilty of a violation of the statute.

5. A motorist entering a public highway from a private driveway on the east and turning north in the east lane thereof is not required to yield the right-of-way to the east half of the highway to an automobile which is being operated in the center of the highway in a southerly direction. The driver of the latter automobile is only entitled to the right-of-way of the west half of the highway.

6. A right-of-way does not include a right to enroach on that part of a highway on which a vehicle from the opposite direction is entitled to travel.

7. It is a motorist using a public highway approaching a private driveway who is proceeding in his proper lane of travel in a prudent and reasonable manner, as the law prescribes, who is given the right-of-way by section 39-752, R.R.S.1943.

8. The user of a public highway is required at all times to use reasonable care considering the existing conditions and circumstances.

9. A motorist must be attentive to where he is traveling on a highway, to what is ahead of him in the direction of his travel or in the direction from which others may be expected to approach, and to know what is in front of him for a reasonable distance.

McGinley, Lane, Shanahan & McGinley, Ogallala, for appellants.

G. B. Hastings, Frederick E. Wanek, Grant, for appellee.

Heard before CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE and BOSLAUGH, JJ.

BOSLAUGH, Justice.

This is an appeal from a judgment for property damage rendered against Charles Hilferty in favor of appellee on his counterclaim for damages caused, as he claimed, by a collision of the automobile negligently operated by Charles Hilferty with an automobile operated by appellee and from an order of the district court overruling the motion of appellants for a new trial.

The substance of the petition of appellants to the extent it is required to be recited herein was as follows: Appellants owned a Dodge sedan automobile, hereafter designated the Dodge, which was operated by Charles Hilferty in the forenoon on or about February 1, 1959, on a north-and-south county highway about 3.5 miles east and 6.2 miles south of Madrid. He entered upon the county highway to travel towards the north at which time he saw appellee approaching in a Ford sedan automobile, hereafter designated the Ford, on the left or east side of the highway moving towards the south at a high and excessive rate of speed, considering the condition of the highway. Appellee did not have the Ford under control and he caused or permitted it to collide with the Dodge which had been stopped in the east lane of the highway. The Dodge was damaged by the collision caused by the negligence of appellee specified in the petition as follows: Operating the Ford on the left side of the center of the highway at an excessive speed, considering the condition of the highway and the traffic thereon; failing to respect the right-of-way of appellant to be and travel upon the right or east side of the highway; failing to maintain a proper lookout for other vehicles on the highway; and failing to have and keep the Ford under control so as to avoid a collision with the Dodge which was in plain sight and properly upon the east lane of the highway. Appellants asked judgment for $460.75 against appellee.

Appellee by answer in substance admitted the operation and the collision of the Dodge and the Ford at the time alleged in the petition; denied all other claims made therein; and pleaded contributory negligence more than slight of Charles Hilferty, hereafter referred to as appellant, as the cause of the collision. Appellee interposed a cross-petition in which he by reference incorporated the contents of his answer as part of it and in substance further stated therein the following: Appellee before the collision of the Dodge and the Ford was operating the latter on the county highway towards the south in a prudent manner at a lawful speed in view of the condition of the highway, and when he was about 200 feet north of the place where the county road and a private farm lane extending from the east intersected the county highway appellee saw the Dodge proceeding towards it from the east about 15 feet from the county highway. An earlier view of the Dodge traveling on the private road was prevented by continuous trees which extended north from it on the east of the county highway for a distance of approximately 200 feet. Appellant did not stop before proceeding from the private lane onto and upon the county highway but in violation of the requirement of the law in that respect entered upon the county highway and commenced a turn to the north or right and proceeded in such a manner that he reached and traveled on the west side of the county highway which was then occupied and used by appellee as he traveled thereon towards the south. Appellee applied the brakes of the Ford but was unable to avoid a collision with the Dodge. Appellant negligently drove the Dodge into and against the Ford causing damage to it. The cause of the collision was the negligence of appellant which was specified in substance as follows: Failure to keep a reasonable lookout for vehicles traveling on the frequently used county highway of which appellant had knowledge; failure to have the Dodge under control so that he could have stopped it at the intersection of the private road with the county highway and thereby have yielded the right-of-way as required by section 39-752, R.R.S.1943; failure of appellant to prevent the Dodge from going upon the west part of the county highway in the path of the Ford which was then rightfully occupied and used by the Ford and which was in plain sight of appellant; failure of appellant to stop the Dodge before entering upon the county highway from the private lane and thereby have avoided a collision by it with the Ford which was traveling on the county highway in plain view of appellant; failure of appellant to look to the north before driving the Dodge upon the county highway or a failure, if he did look to the north, to see the Ford on the highway moving to the south in close proximity to appellant; and failure of appellant to operate the Dodge before and at the time of the collision in a careful and reasonable manner so as not to endanger or injure appellee. The Ford was because of the negligence of appellant damaged in the sum of $375.62 for which appellee asked judgment.

A jury trial of the issues of the case was waived and the parties by stipulation consented to a trial thereof by the court without the presence or participation of a jury. The district court found generally against appellant and in favor of appellee and that the cause of the collision and damage sustained by appellee was the negligence of appellant in entering the county highway from the private lane without yielding the right-of-way to appellee. A judgment was rendered for appellee against appellant for $375.62, interest, and costs.

This is an action at law tried and determined by the district court by stipulation of the parties without the presence or participation of a jury. Its findings have the effect of a verdict of a jury and may not be disturbed unless they are clearly wrong. This court may not resolve conflicts in or weight evidence in such a case. In reviewing the judgment rendered this court will conclusively presume that controverted facts were decided by the trial court in favor of the successful party and its conclusion will not be set aside unless it is clearly wrong. In considering it, if the evidence sustains the findings and judgment in such a case tried without a jury, the evidence will be considered most favorably to the successful litigant and the benefit of reasonable inferences deducible therefrom will be accorded him. This court in reviewing and deciding an appeal in such a case will regard as established every fact favorable to the successful party which the evidence proves or tends to establish. Grant v. Williams, 158 Neb. 107, 62 N.W.2d 532; Dunbier v. Stanton, 170 Neb. 541, 103 N.W.2d 797.

It is in observance of these requirements that the evidence is summarized: Appellee at about 9:30 o'clock on the morning of February 1, 1959, accompanied by his wife, left their home about 10 1/2 miles from the place where the accident involved in this case occurred. They were commencing an intended trip to Stratton. They traveled south in the Ford operated by appellee on a county highway which extended north and south, the traveled portion of which was about 18 feet wide. It was a nice, clear day. The trip from their home to near the place of the collision was without unusual incident and during that time the speed of the Ford was about 45 or 50 miles per hour and not more than the latter. The speedometer 1 mile north of where the accident happened showed its speed was 48 or 49 miles per hour. It was about 10 1/2 miles between the home of appellee and the John Hilferty farm which was on the east side of the county highway on which appellee was traveling that morning. The collision happened at 10:10...