Howerter v. Olson

Decision Date02 February 1945
Docket NumberNo. 31839.,31839.
Citation17 N.W.2d 483,145 Neb. 507
PartiesHOWERTER v. OLSON et al.
CourtNebraska Supreme Court

145 Neb. 507
17 N.W.2d 483

HOWERTER
v.
OLSON et al.

No. 31839.

Supreme Court of Nebraska.

Feb. 2, 1945.


Appeal from District Court, Douglas County; Thomsen, Judge.

Action by Ray Howerter against Wallace A. Olson and others for property damage resulting from a collision between gasoline transport unit owned by plaintiff and a truck owned by defendants. Verdict and judgment for plaintiff, and defendants appeal.

Judgment affirmed.


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.

[17 N.W.2d 484]


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.

SIMMONS, Chief Justice.

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...

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