Horst v. Johnson, 88-1069

Decision Date01 February 1991
Docket NumberNo. 88-1069,88-1069
Citation237 Neb. 155,465 N.W.2d 461
PartiesJames K. HORST, Appellant, v. Kevin W. JOHNSON, Appellee.
CourtNebraska Supreme Court

Syllabus by the Court

1. Appeal and Error. Errors assigned but not discussed in an appellant's brief are not considered by this court.

2. Directed Verdict. In considering a motion for a directed verdict, the court resolves the controversy as a matter of law and may sustain the motion only when the facts are such that reasonable minds can draw but one conclusion.

3. Directed Verdict. In considering the evidence for the purpose of a motion for directed verdict, the party against whom the motion is made is entitled to have the benefit of every inference which can reasonably be drawn from the evidence; if there is any evidence in favor of the party against whom the motion is made, the case may not be decided as a matter of law.

4. Motor Vehicles: Negligence. Under the range of vision rule, a motorist is generally deemed negligent as a matter of law if he or she operates a motor vehicle in such a manner as to be unable to stop or turn aside without colliding with an object or obstruction in the motorist's path within his or her range of vision.

5. Motor Vehicles: Negligence. An exception to or exoneration from the range of vision rule exists when a motorist, otherwise exercising reasonable care, does not see an object or obstruction sufficiently in advance to avoid colliding with it because it is similar in color to the road surface and is thus relatively indiscernible.

6. Negligence: Words and Phrases. Contributory negligence is conduct for which a plaintiff is responsible, amounting to a breach of the duty which the law imposes upon persons to protect themselves from injury and which, concurring and cooperating with actionable negligence on the part of the defendant, contributes to the injury.

7. Negligence. An actor is contributorily negligent if (1) he or she fails to protect himself or herself from injury, (2) his or her conduct concurs and cooperates with the defendant's actionable negligence, and (3) his or her conduct contributes to his or her injuries as a proximate cause.

8. Evidence: Negligence. Where evidence is in conflict and such that reasonable minds may draw different conclusions therefrom, the questions of negligence and comparative and contributory negligence are factual determinations.

Dorothy A. Walker, of Mowbray & Walker, P.C., Lincoln, for appellant.

Susan Jacobs, of Healey, Wieland, Kluender, Atwood, Jacobs & Geier, Lincoln, for appellee.

HASTINGS, C.J., WHITE, CAPORALE, SHANAHAN, GRANT, and FAHRNBRUCH, JJ., and COLWELL, District Judge, Retired.

CAPORALE, Justice.

Plaintiff-appellant, James K. Horst, challenges the dismissal pursuant to verdict of the suit he brought following a collision between the pickup truck he was operating and an automobile driven by defendant-appellee, Kevin W. Johnson. The first three of Horst's five assignments of error combine to assert the district court erred in (1) failing to grant the motion he made at the close of all the evidence for a directed verdict in his favor against Johnson on the issue of liability and (2) submitting to the jury the issue of his contributory negligence. The remaining two assigned errors claim that the verdict is contrary to law and not supported by the evidence and that the district court erred in failing to set aside the verdict and grant him a new trial, but they are not discussed in his brief. Errors assigned but not discussed in an appellant's brief are not considered by this court. State v. Two IGT Video Poker Games, 237 Neb. 145, 465 N.W.2d 453 (1991); State v. Cortis, 237 Neb. 97, 465 N.W.2d 132 (1991); State v. Contreras, 236 Neb. 455, 461 N.W.2d 562 (1990); State v. Bradley, 236 Neb. 371, 461 N.W.2d 524 (1990); Neb.Ct.R. of Prac. 9D(1)d (rev. 1989). We thus concern ourselves only with the first two summarized assignments and refer to the issues presented by the claimed but undiscussed errors only to the extent those issues are subsumed in the first two summarized assignments. The record failing to sustain the first two summarized assignments of error, we affirm.

At approximately 2 a.m. on October 18, 1986, Johnson left Omaha, Nebraska, in his automobile, destined for Hastings, Nebraska, where he was to begin certain U.S. Naval Reserve training at 7 a.m. He had concluded 7 consecutive days of work when he, on October 17, 1986, finished a 12-hour shift which ended at 7 p.m. Johnson spent at least 1 1/2 hours after work during that same evening in a bar, where he consumed two or three beers before returning home to rest; he, however, did not sleep prior to leaving for Hastings. Johnson testified that while on Interstate 80 between Omaha and Lincoln, Nebraska, he became tired but was not dozing off.

Horst, driving a dark-green pickup truck, left Lincoln at approximately 3:30 a.m. on October 18, 1986, bound for Clay Center, Nebraska, also via the Interstate. Horst testified that his headlights and taillights were working at the time.

As Johnson passed Lincoln on the Interstate, he became even more tired, such that he rolled down the windows of his automobile and played the radio loudly. Johnson testified that he then decided to look for a place to exit the Interstate due to his weariness. There was some ground fog in the lowlands at this point, and Johnson was traveling at approximately 55 miles per hour. No vehicle passed Johnson after he left Lincoln, the Interstate being "virtually abandoned." Johnson did notice two taillights in front of him from time to time, but he could not gauge their distance from him. Although they disappeared from his view from time to time because of the ground fog and hills, Johnson maintained a relatively constant distance between himself and the taillights. At this point the Interstate was newly paved, or blacktopped. Johnson traveled in the right-hand lane, focusing on the illuminated taillights ahead of him and the newly painted solid white line to his right and the dashed centerline of the Interstate to his left.

As Horst traveled westward, he also saw lighted taillights ahead of him. He began to get cool because a window in his pickup was rolled down, and he decided to pull off the Interstate to roll it up. He testified that he turned on his right turn signal, looked in his rearview mirror, and noticed a vehicle's headlights one-half to 1 mile behind him. According to Horst, he then pulled completely off the Interstate, took his pickup truck out of gear and his foot off the clutch, applied his emergency brake, and leaned over in his pickup to roll up the open passenger window. Horst's pickup was struck from behind as he began to roll up the window.

On direct examination by Horst, Johnson testified that he did not see the pickup until a split second before the collision and that he did not see lighted taillights on the pickup prior to the impact. He also testified on his own cross-examination that the rear portion of Horst's pickup extended 12 to 14 inches over the white line into the driving lane.

The collision occurred at approximately 4:15 a.m. on October 18, 1986, at a site approximately 800 feet below and beyond, as the vehicles moved west on the Interstate, the crest of a hill. In daylight, the collision site was visible from the crest of the hill.

A Nebraska State Patrol trooper was the first investigating officer at the accident scene. The trooper found Horst's pickup on the right shoulder of the Interstate, with its front portion in the right-hand ditch. Johnson's automobile was found sideways on the driving surface, straddling the centerline of the westbound Interstate lanes. The trooper testified that Johnson told him at the accident scene that he was very sleepy and that the first he knew of the accident was when he hit Horst's pickup. The trooper smelled alcohol on Johnson's breath, but a preliminary breath test conducted at the scene showed that Johnson was not intoxicated.

The trooper took measurements from which he made an illustration of what was in his opinion a reconstruction of the collision. The trooper's testimony essentially corroborated Horst's contention that he had stopped his pickup completely off the traveled portion of the highway and was wholly within the shoulder of the Interstate.

A Lincoln Police Department lieutenant testified as Johnson's accident reconstruction expert. It was the lieutenant's opinion, based upon the trooper's measurements and illustration of the vehicles' postcrash positions, that Horst's pickup was parallel with and straddled the white line separating the right-hand driving lane from the shoulder, with approximately one-half of the pickup extended into the driving lane at the time of the collision. The lieutenant further opined that if Johnson's first sighting of Horst's pickup was a split second before impact, Johnson was not maintaining a proper lookout.

We begin our analysis by noting that when considering a motion for a directed verdict, the court resolves the controversy as a matter of law and may sustain the motion only when the facts are such that reasonable minds can draw but one conclusion. In considering the evidence for the purpose of a motion for directed verdict, the party against whom the motion is made is entitled to have the benefit of every inference which can reasonably be drawn from the evidence. If there is any evidence in favor of the party against whom the motion is made, the case may not be decided as a matter of law. Chadron Energy Corp. v. First Nat. Bank, 236 Neb. 173, 459 N.W.2d 718 (1990); McCune v. Neitzel, 235 Neb. 754, 457 N.W.2d 803 (1990).

Horst places great reliance on the range of vision rule. Under this rule, which has been recognized in Nebraska since at least 1928, a motorist is generally deemed negligent as a matter of law if he or she operates a motor vehicle in such a manner as to be unable to stop or turn aside...

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