Howerter v. Olson

• Decision Date: 22 June 1945
• Docket Number: 31839.
• Citation: 19 N.W.2d 346,145 Neb. 507
• Parties: HOWERTER v. OLSON et al.
• Court: Nebraska Supreme Court

19 N.W.2d 346

145 Neb. 507

HOWERTER v. OLSON et al.

No. 31839.

Supreme Court of Nebraska

June 22, 1945

Syllabus by the Court.

1. Under the laws of Wyoming the issue of negligence or contributory negligence is ordinarily one to be determined by the jury. This is so even where the testimony is undisputed, if different minds may fairly arrive at different conclusions, and where the inferences from the facts are not so certain that all reasonable men, in the exercise of fair and impartial judgment, must agree upon them.

2. Tire tracks made on a highway by the collision of motor vehicles are circumstantial evidence to be weighed or considered by a jury along with the other evidence in the case.

3. In the absence of proof to the contrary, the laws of a sister state will be presumed to be the same as the laws of Nebraska.

SIMMONS C. J., dissenting in part.

Gaines & Shoemaker, of Omaha, for appellant.

Wear Boland & Nye, of Omaha, for appellee.

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

YEAGER Justice.

An opinion was previously adopted in this case which appears in 17 N.W.2d 483. A motion for rehearing was presented. On reconsideration we have arrived at conclusions which conflict with the former opinion. The statement of the case in the former opinion without its conclusions is correct but we deem it advisable to make a brief restatement herein in order that the portion of the opinion which shall follow may be intelligible.

This is an action for damages by Ray Howerter, plaintiff and appellee, against Wallace A. Olson, Milton J. Olson, Myron S. Olson and Olson Bros., a copartnership, defendants and appellants. The action grows out of a collision between an oil transport truck owned by plaintiff and a pick-up truck owned by the defendants. The date of the collision was May 7, 1943, and the place a few miles west of Douglas, Wyoming, on U. S. Highway 20-87. At the point of the collision the grade of the highway was 2.5 per cent, with the decline to the eastward. About a quarter of a mile west the grade was 5.5 per cent. There was a leveling off between these two points. This was a two-lane east and west arterial highway with oil-paved surface and was protected by stop signs at intersecting roads. It appears that there was a yellow broken line down the center of the paving although this is disputed. A short distance west of the point of the collision was a county road entering from the south. At this intersection there had been a stop sign the purpose of which was to cause vehicles coming from the south to stop before entering upon this highway. Whether the stop sign was in position at the time involved herein is not made certain by the evidence. The paving at this point was about 20 feet in width. Beyond the paving on both sides were gravel shoulders. Plaintiff's truck empty weighed over 14,000 pounds and at the time of the collision was carrying over 4,000 gallons of gasoline. The unit was composed of a tractor with a detachable tank on a separate carriage. Defendants' truck was 3/4 ton capacity and was carrying a small load of building material. Both trucks at the time of the collision were traveling in an easterly direction on U. S. Highway 20-87. The collision was between the rear end of defendants' truck and the front end of plaintiff's. It occurred about 75 feet east of the point where the road from the south enters U. S. Highway 20-87.

Substantially the claim of plaintiff is that when his truck was coming eastward under control and yet back of the intersection of the road from the south with U. H. Highway 20-87 his driver saw defendants' truck come out from the south without stopping before entry and turn east on the right side of the highway; that thereupon his driver pulled over to the left of the center with the purpose and intention of passing; that when the two trucks were close together defendants' driver suddenly and without warning pulled over to the left of the center and in front of plaintiff's truck; that plaintiff's driver immediately set his brakes which he was using theretofore and sounded his horn but no sufficient time or opportunity was afforded to avoid a collision; that the right front of plaintiff's and the left rear of defendants' truck came into collision with great force and violence resulting in the damage to plaintiff's truck.

The charges of negligence to the extent necessary to set them forth here are that the driver of defendants' truck failed to stop at the stop sign before entering U. S. Highway 20-87; that the said driver failed to keep a proper lookout for traffic on U. S. Highway 20-87; that the failed to accord to plaintiff's truck the right of way; that he failed to heed the warning signal given by plaintiff's driver; that suddenly and without warning he pulled onto the north side of the highway at a time and in such manner that a collision was unavoidable.

For answer to the petition the defendants first filed a general denial, then alleged specially that the collision came about because of the negligence and contributory negligence of plaintiff's driver in the following particulars: That he was operating the truck at a high, dangerous and unreasonable rate of speed; that the truck was out of control; that he attempted to pass at a time and under circumstances when passing was dangerous. Further answering they pleaded the applicability of the laws of Wyoming with regard to negligence and asserted that contributory negligence on the part of plaintiff's driver was a bar to recovery.

At the conclusion of plaintiff's evidence the defendants moved for a directed verdict which was overruled.

At the conclusion of all of the evidence the cause was submitted to a jury under instructions outlining the theory contained in the petition and in part the theory of the answer. The jury returned a verdict in favor of plaintiff in the amount of $4,250. Judgment was entered on the verdict. Motion for new trial was filed and overruled. From this judgment and the order overruling the motion for new trial the defendants have appealed.

The defendants predicate their first ground for reversal on the ground that the court should have directed a verdict in favor of defendants, it being their contention first, that negligence was not proven and second, that plaintiff's driver was guilty of contributory negligence sufficient as a matter of law to defeat a recovery.

The evidence of plaintiff is that at a point about 750 feet west of the side road plaintiff's truck was traveling from 30 to 35 miles per hour; that the driver slackened the speed of the truck so that when he was about 50 feet west of the intersection it had been reduced to about 25 to 30 miles per hour; that just before the collision the speed was from 15 to 20 miles per hour; that when plaintiff's driver was about 50 feet back from the intersection defendants' truck came into the intersection without stopping and turned east onto and proceeded eastward on the right or south side of U. S. Highway 20-87; that at about this point plaintiff's driver sounded his horn and pulled over north beyond the center of the highway and kept riding his brakes and reducing the speed of his truck; that between 50 and 75 feet east of the intersection defendants' truck lurched over in front of plaintiff's truck so suddenly that plaintiff's driver was unable to avoid a collision. After the collision the trucks traveled 300 to 350 feet eastward and turned over. There were tire marks on the highway in the vicinity of the collision. These marks were north of the center.

On these facts in the light of the allegations of the petition it cannot be said that the trial court erred in refusing to direct a verdict in favor of the defendants. The question of whether or not defendants' driver was negligent under the circumstances is one upon which different minds might fairly arrive at different conclusions. This being true a jury question was presented.

'The issue of negligence or contributory negligence is ordinarily one to be determined by the jury. * * * That is true, even in a case where the testimony, as in the case at bar, is undisputed, if different minds may fairly arrive at different conclusions, and where the inferences from the facts are not so certain that all reasonable men, in the exercise of fair and impartial judgment, must agree upon them.' Loney v. Laramie Auto Co., 36 Wyo. 339, 255 P. 350, 354, 53 A.L.R. 73.

Defendants assert that the evidence discloses that plaintiff's driver was guilty of contributory negligence as a matter of law, that is, contributory negligence was shown without dispute and so conclusively that different minds could not fairly arrive at a different conclusion and that opposite inferences by reasonable men in the exercise of fair and impartial judgment could not be drawn. The witnesses for defendants do not concede that defendants' driver came out from the side road without stopping. Their testimony was to the contrary. They do not concede that defendants' truck was on the north side of the highway at the time of the collision. While there is not too much certainty in their testimony in this regard yet it is a sufficient denial to prevent a trial court or this court from saying that plaintiff's evidence must be taken as true and that no opposing inference may reasonably be drawn from the entire evidence.

Contrary to the determination made in the former opinion, we now conclude that plaintiff was not entitled to a directed verdict. To hold that he was so entitled would be to say that the negligence of defendants was proven without refutation and also that the allegations of contributory negligence were without support in the evidence.

It was contended...