Huntwork v. Voss

• Decision Date: 13 January 1995
• Docket Number: No. S-93-352,S-93-352
• Citation: 247 Neb. 184,525 N.W.2d 632
• Parties: David R. HUNTWORK, Appellant, v. Nellie J. VOSS, Appellee.
• Court: Nebraska Supreme Court

Page 632

525 N.W.2d 632

247 Neb. 184

David R. HUNTWORK, Appellant, v. Nellie J. VOSS, Appellee.

No. S-93-352.

Supreme Court of Nebraska.

Jan. 13, 1995.

Syllabus by the Court

1. Summary Judgment: Appeal and Error. In reviewing a summary judgment, an appellate court views the evidence in a light most favorable to the party against whom the judgment is granted and gives such a party the benefit of all reasonable inferences deducible from the evidence.

2. Summary Judgment. Summary judgment is to be granted only when the pleadings, depositions, admissions, stipulations, and affidavits in the record disclose that there is no genuine issue as to any material fact or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law.

3. Motor Vehicles: Highways. The most dangerous movement on public streets or highways is the left-hand turn. While the left-hand turn at intersections is within the purview of this statement, the left-hand turn across a favored public highway between intersections is a particularly dangerous one.

4. Motor Vehicles: Negligence. The giving of the statutorily required left-hand turn signal is not enough; one must exercise reasonable care under all the circumstances.

5. Motor Vehicles: Negligence. The exercise of reasonable care includes the requirement that a left-turning motorist maintain a proper lookout by looking both to the front and to the rear before executing a left turn between intersections.

6. Motor Vehicles. A motorist must see what is in plain sight.

7. Motor Vehicles: Highways: Negligence. Where the driver of a vehicle turning across a street or highway between intersections fails to look at all at a time and place where to look would be effective, or looks and negligently fails to see that which is plainly in sight, or is in a position where he cannot see, a question for the court is usually presented. Where he looks but does not see an approaching automobile because of unusual conditions or circumstances, or sees the approaching vehicle and erroneously misjudges its speed or distance, or for some reason assumes he could safely complete the movement, the question is usually one for the jury.

8. Motor Vehicles. The speed of an automobile is excessive if it is found to be unreasonable or imprudent under the existing circumstances, even though it may not exceed the applicable statutory limits.

9. Motor Vehicles. A motorist overtaking and passing another car must exercise vigilance commensurate with the surrounding conditions.

Douglas R. Milbourn, of Milbourn, Fehringer, Kessler & Peetz, P.C., Columbus, for appellant.

C.J. Gatz, of Jewell, Gatz, Collins, Fitzgerald & DeLay, Norfolk, for appellee.

HASTINGS, C.J., WHITE, CAPORALE, LANPHIER, and WRIGHT, JJ., and HOWARD, D.J., Retired.

PER CURIAM.

David R. Huntwork sued Nellie J. Voss to recover for personal injuries sustained when Voss' vehicle struck Huntwork's left-turning vehicle as Voss was passing another vehicle and then Huntwork's vehicle on a rural county road. The district court for Pierce County awarded summary judgment in favor of Voss and ordered Huntwork's petition dismissed. Huntwork appeals.

We reverse the district court's order of summary judgment and remand the cause for trial.

STANDARD OF REVIEW

In reviewing a summary judgment, an appellate court views the evidence in a light most favorable to the party against whom the judgment is granted and gives such a party the benefit of all reasonable inferences deducible from the evidence. Omega Chemical Co. v. Rogers, 246 Neb. 935, 524 N.W.2d 330 (1994); LaBenz Trucking v. Snyder, 246 Neb. 468, 519 N.W.2d 259 (1994). Summary judgment is to be granted only when the pleadings, depositions, admissions, stipulations, and affidavits in the record disclose that there is no genuine issue as to any material fact or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law. Id.

FACTS

Viewing the evidence in the light most favorable to Huntwork and giving Huntwork the benefit of all reasonable inferences deducible from the pleadings and the depositions entered into evidence, we find that the facts of this case are as follows:

On July 13, 1989, at approximately 2:30 p.m., Huntwork was proceeding southbound on a rural two-lane blacktop county road. He was driving his 1977 Plymouth Volare station wagon, and his wife and three children were in the vehicle with him. Following Huntwork were a pickup, a brown car, and the Voss vehicle, a 1986 Chevrolet Cavalier. The day was clear and sunny. The road was flat and in good condition.

Huntwork slowed, preparing to turn left into a private driveway, and began to signal his intention 150 feet before the turn. At that time, Huntwork checked his rearview mirror and noted the pickup approximately 50 to 70 feet behind him. He saw no other vehicles at that time. Huntwork then checked his side mirror and saw a brown vehicle coming past him at a "high rate of speed." Huntwork continued to slow and waited as the brown car passed.

Upon reaching the driveway, Huntwork rechecked his inside rearview mirror and then his left side mirror to verify that the pickup was continuing to honor his turn signal and that there was no northbound or southbound traffic before beginning to execute the left turn. Huntwork testified in his deposition that there was "no car of any kind" coming up behind him and that he then began to execute his turn at a speed he estimated at 5 to 10 m.p.h.

As Huntwork turned, Voss' vehicle struck the left front wheel area of Huntwork's vehicle as Voss attempted to pass the pickup and Huntwork. The impact of the collision impelled Huntwork's vehicle southward down the road where it came to rest on the left shoulder. The Voss vehicle spun and came to rest facing the opposite direction, that is, northward, in the road. The Voss vehicle Huntwork sued Voss for negligence to recover for personal injuries to himself and his daughter. In her answer, Voss affirmatively alleged that Huntwork was contributorily negligent sufficient to bar his recovery.

received damage to a fender and the front end, and Huntwork's vehicle was declared a total loss.

In her deposition entered into evidence in support of her summary judgment motion, Voss claimed that the three vehicles ahead of her were "parked" when she came upon them and that after stopping on the highway, she followed the brown car in an attempt to pass the pickup and the Huntwork vehicle. In a recorded telephone statement made to Huntwork's attorney, a transcribed copy of which was included as an exhibit to Voss' deposition, Voss claimed that she was traveling at no more than 5 to 10 m.p.h. while attempting to pass. Voss stated in her deposition that she was unable to see whether Huntwork's turn signals were on.

The trial court entered summary judgment in favor of Voss on the basis that Huntwork was contributorily negligent as a matter of law for failing to see Voss prior to making the left-hand turn, and dismissed Huntwork's petition. Huntwork timely appealed to the Nebraska Court of Appeals. The case was removed from the Court of Appeals to this court pursuant to our authority to regulate the caseloads of the appellate courts of this state.

ASSIGNMENTS OF ERROR

Summarized and restated, Huntwork claims that the district court erred in awarding summary judgment in favor of Voss and dismissing Huntwork's petition because (1) it erroneously found Huntwork to be contributorily negligent as a matter of law even though he had met the standard of care imposed upon left-turning motorists and (2) it erroneously drew the inference that Voss was free of negligently exceeding the statutory speed limit.

ANALYSIS

We first turn to the issue of Huntwork's contributory negligence.

This court has long recognized the danger inherent in left-hand turns.

The most dangerous movement on public streets or highways is the left-hand turn. While the left-hand turn at intersections is within the purview of this statement, the left-hand turn across a favored public highway between intersections is a particularly dangerous one. Legislatures have seen fit to regulate such movements and courts have required a degree of care commensurate with the danger.

(Emphasis supplied.) Petersen v. Schneider, 153 Neb. 815, 819, 46 N.W.2d 355, 358 (1951), modified 154 Neb. 303, 47 N.W.2d 863.

Accordingly, a left-turning motorist such as Huntwork has certain statutorily imposed duties, as well as the duties imposed by the common law. A left-turning motorist has the duty to continuously signal his or her intention to turn left during not less than the last 100 feet before turning. See Neb.Rev.Stat. § 60-6,161 (Reissue 1993).

A left-turning motorist also has the duty not to turn unless and until the movement can be made with reasonable safety. Id. This court has held, under the predecessor to § 60-6,161, that "the giving of the statutory signal is not enough, one must exercise reasonable care under all the circumstances." Petersen v. Schneider, 153 Neb. at 819, 46 N.W.2d at 358. Accord Rowedder v. Rose, 188 Neb. 664, 199 N.W.2d 18 (1972).

The exercise of reasonable care includes the requirement that a left-turning motorist maintain a proper lookout by looking both to the front and to the rear before executing a left turn between intersections. See Petersen v. Schneider, supra. "One must look at a time when possible danger could be observed. The observations must be made immediately before the impending movement; otherwise ... the observation would be completely ineffective for the accomplishment of the purpose intended." 153 Neb. at 820, 46 N.W.2d at 358-59. The failure to look at a time when looking would have been effective is negligence as a matter of law. Circo v. Transit Auth. of City of Omaha, 217 Neb. 497, 348 N.W.2d 908 The evidence in this case is...