Howerter v. Olson
| Decision Date | 02 February 1945 |
| Docket Number | 31839. |
| Citation | 17 N.W.2d 483,145 Neb. 507 |
| Parties | HOWERTER v. OLSON et al. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
Where the jury arrive at the only conclusion that the evidence would sustain and where, in the light of the pleadings and the competent evidence introduced, the trial court should have directed a verdict in favor of the prevailing party had it been requested, this court will not consider errors assigned by the defeated party complaining of instructions given or refused relating thereto.
Gaines & Shoemaker, of Omaha, for appellants.
Wear Boland & Nye, of Omaha, for appellee.
Before SIMMONS, C. J., and PAINE, CARTER, MESSMORE, YEAGER CHAPPELL, and WENKE, JJ.
This action involving only property damage, arises as the result of a collision between a gasoline transport unit owned by the plaintiff, and a truck owned by the defendants. It was tried in the district court where a jury found for the plaintiff. Defendants appeal. We affirm the judgment of the trial court.
The accident occurred about midafternoon, May 7, 1943, on U. S. Highway 20-87 just west of the city of Douglas, Wyoming. The highway there had a restricted speed limit of 35 miles per hour. About a quarter of a mile west of the point of the collision, the highway came over a hill and for some distance east had a down grade of 5.5 per cent, then leveled out somewhat into an average down grade of 2.5 per cent, to the point of the accident. This highway had a two-lane oil-paved surface, averaging 20 feet in width, with gravel shoulders on either side. Just west of the point of the accident a graveled county road intersected the U. S. highway at right angles and from the south. The collision occurred just east of this intersection. There were no obstructions to visibility from either highway to the other.
Plaintiff's unit consisted of a tractor and a detachable trailer tank. The tractor was painted red and the tank white, with black lettered signs. At the time of the accident, the tank contained over 4,000 gallons of gasoline, and the entire unit loaded weighed over 19 tons. Defendants' unit was a light 3/4 ton truck, carrying a small load of building material.
Plaintiff's unit was being driven east on the U. S. Highway with only the driver in it. Defendants' truck with a second person in it was driven onto the U. S. highway from the south. It turned east and had proceeded to a point about 75 feet east of the intersection of the center of the county road with the center of the U. S. highway, when plaintiff's unit collided with it. The right front of plaintiff's tractor struck the left rear of defendants' truck. The impact width was 2 feet, 8 inches. The vehicles went on down the highway a distance of 300 to 350 feet. The tractor and the trailer separated during the movement. The tractor and defendants' truck stopped on the south side of the highway. The trailer tank overturned and 'rolled' about 75 feet before coming to a stop on the highway. The tractor was wrecked beyond repair. The trailer tank was badly damaged but repairable. The weather was cloudy and the oiled highway was dry. The above facts are not in dispute.
There is a dispute as to whether there was a yellow line painted, solid or broken, down the center of the pavement.
There is some dispute as to whether the highway 'stop' sign was standing on the right of the county highway just south of the intersection. Defendants' driver testified the stop sign was there. There is no dispute but that both drivers knew that a stop sign had been erected there.
There is a direct dispute as to whether or not defendants' truck stopped before entering the U. S. highway. Plaintiff's driver testified that it did not. Defendants' driver testified that he stopped the truck before entering the highway. This evidence will be outlined later herein.
There is a dispute as to the speed of the two vehicles. Plaintiff's driver testified that his speed at about 750 feet west of the intersection was from 30 to 35 miles per hour; that he slackened his speed and when about 50 feet west of the intersection, was going at a speed of 25 to 30 miles per hour; that just before the collision, he set all his brakes and was going from 15 to 20 miles per hour when the collision occurred. The patrolman interviewed plaintiff's driver at the hospital after the accident. He testified that the driver told him his speed was about 45 miles per hour 'prior to the accident or when the danger was first noticed * * *.' Defendants offered the testimony of a witness to the effect that from a point near the intersection, he saw plaintiff's truck about a quarter of a mile west, watched it coming down the highway for 100 feet and that its speed was then 60 miles per hour. Plaintiff's driver testified that he first observed defendants' truck about 500 feet south of the intersection; that it was then going from 25 to 30 miles per hour; and that when it entered the highway, it was going 20 miles per hour. Defendants' evidence was that their truck was going about 10 miles per hour when hit.
The testimony as to how and where the accident occurred is not conflicting. Plaintiff's driver testified that when defendants' truck came upon the highway in front of him, it did so on the right-hand side of the road and started east on its proper side; that plaintiff's driver then turned to the left to pass defendants' truck, blew his horn repeatedly, and got entirely over on the left-hand side of the oiled portion of the highway, when suddenly defendants' truck 'lurched' over in front of him when they were a matter of a few feet apart, Plaintiff's driver then set his brakes, got to the far (north) side of the highway, so that his left tractor wheels were on the gravel. He could not avoid the collision. The impact occurred, the door of the tractor opened and he was thrown out.
The under-sheriff and the highway patrolman came to the scene at separate times thereafter. They are not contradicted on their evidence as to what was visible. There were dark, heavy skid marks all well over on the north half of the pavement, beginning about 15 to 25 feet west of the point of impact, as they determined it, and continuing to where the trailer turned over and the tractor left the pavement. There were lighter marks beginning at the point of impact and continuing down the pavement to where defendants' truck left the pavement. They located the point of impact from the skid marks and glass. It was 75 feet east of the intersection, and on the north half of the highway. The patrolman made exact measurements. The oiled surface at the point of impact was 21 feet, 9 inches wide. As shown by the skid marks, the right wheels of the defendants' truck were 8 feet, 7 inches from the edge of the pavement on the south side, and 12 feet, 3 inches from the north edge of the oiled surface, and the left wheels were 7 feet, 2 inches from the edge on the north side.
Milton J. Olson, one of the defendants, arrived at the scene of the accident about five minutes after it happened, and was there when the patrolman arrived. He placed the point of impact at about 75 to 80 feet east of the intersection. He was asked where the point of impact was with reference to whether it was north or south of the center of the road. He testified that there was a definite marking as to where the skidding first occurred; and that 'at the time' he could not quite agree with the patrolman that the lighter marks on the pavement were made by 'our truck,' the disagreement being that they could not establish When asked on what side of the highway the collision occurred, he answered: 'I would say it wasn't in the middle--it was practically--it was on the right side of the highway, mostly on the right side of the highway.' And 'From the angle of the skid marks it was a little to the left of the highway--or the center line of the highway, * * *.' And later on, 'The point of impact showed a darker line, but not what you would call a definite skid mark' but 'a mark made by' the tires of defendants' truck.
On direct examination, the passenger in defendants' truck testified: '* * * we was on our side of the road, I am sure' and again he testified that he 'thought' they were on their own side. But on cross-examination he testified that he was not positive this accident happened on the south side of the road. He further testified that he gave the county attorney an affidavit stating: 'I don't know what side of the road we were on although I think we were on our side.'
Defendants' driver was asked on direct examination where he was on the highway when he was hit. He answered: On cross-examination, he testified: 'I don't think it was past the center.' He further was examined with reference to a chart that some one had drawn, purporting to show the position of the two vehicles at the time of the impact. He then was asked to mark the center of the highway.
He did so, showing his truck to be partly on the north half of the highway, but he 'couldn't say' if it was correct.
The evidence shows that defendants' driver, while not positive as to whether he was across the center of the road was testifying as to where he was on the highway when he entered and turned to go east. Plaintiff's driver puts him on the south side at that time. It further is noted that there was no denial of plaintiff's testimony that just before the impact the defendants' truck suddenly turned or 'lurched' across the center of the...
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