Johnson v. Anoka-Butte Lumber Co.

• Decision Date: 24 July 1942
• Docket Number: 31403.
• Citation: 5 N.W.2d 114,141 Neb. 851
• Parties: JOHNSON v. ANOKA-BUTTE LUMBER CO. et al.
• Court: Nebraska Supreme Court

5 N.W.2d 114

141 Neb. 851

JOHNSON v. ANOKA-BUTTE LUMBER CO. et al.

No. 31403.

Supreme Court of Nebraska

July 24, 1942

Syllabus by the Court.

1. The submission of a material issue to the jury, where there is no evidence to sustain a finding thereon, ordinarily constitutes prejudicial error.

2. A pedestrian has equal rights with the operator of a vehicle in the use of public highways, and each must use reasonable care for his own safety and the safety of others.

3. Where a pedestrian, clad in dark clothing, upon the background of a dark road, is walking at night on the left-hand side of the highway and is struck by a vehicle approaching from his rear, it is for the jury to determine if the operator of the vehicle was negligent in not seeing the pedestrian in time to avoid the accident.

4. Under such circumstances the pedestrian had the right to assume that the driver of a vehicle approaching from the rear would exercise ordinary care in keeping a lookout for him and others using the highway.

5. A pedestrian so walking along the highway is not guilty of contributory negligence in failing to look back to observe the approach of vehicles from the rear or in failing to anticipate the negligence of the driver of a vehicle approaching from that direction.

Gaines McLaughlin & Shoemaker, of Omaha, for appellants.

William H. Lamme, of Fremont, for appellee.

Heard before SIMMONS, C. J., and ROSE, EBERLY, PAINE, CARTER, and YEAGER JJ., and ELLIS, District Judge.

CARTER Justice.

This is an action brought by plaintiff as administratrix of the estate of Carl H. Johnson, deceased, against the defendants to recover damages for the death of Carl H. Johnson. A verdict for $10,000 was returned for plaintiff and defendants appeal from the judgment entered thereon.

It appears that on the night of April 9, 1941, Carl H. Johnson was killed when struck by an oil transport truck owned by the Anoka-Butte Lumber Company and operated by its employee Celestine Reiman. The accident occurred south of a viaduct on highway No. 275 near the town of Waterloo Nebraska, at about 10:00 p. m. The record shows that as one approaches the viaduct from the south, the highway runs practically straight north until it reaches a point 150 feet south of the steel structure constituting the viaduct proper as distinguished from its approaches. When this point is reached the highway curves slightly to the west. The deceased was walking south on the left-hand side of the highway at a point 786 feet south of the south end of the steel portion of the viaduct when he was struck by the oil transport, which was also traveling south.

There is very little conflict in the evidence. The defendant Reiman left Fremont with the empty oil transport shortly after 9:00 p. m., enroute to Topeka, Kansas. The night was dark and cloudy. The pavement was dry, but the shoulders were wet due to a rain that fell during the day. He had not been driving during the day, prior to his taking over the operation of the oil transport at Fremont. His testimony is that his truck, including brakes and lights, was operating properly. As he approached the viaduct from a northerly direction he passed a loaded cattle truck being driven by Reynold Ditter, which followed him up the incline of the approach to the viaduct at a distance of 250 feet behind him. As the oil transport came up the approach to the viaduct it followed another cattle truck being operated by John Nansel. As the Nansel truck left the steel portion of the viaduct the oil transport started around him. The evidence is that Nansel was not driving over 30 miles an hour and that Reiman was not exceeding 35 miles an hour during the passing operation. The paving at this point was 18 feet wide and the highway had a gradual downgrade for some distance. Just as the oil transport cleared the Nansel truck at a point approximately 786 feet south of the steel part of the viaduct, it was turned suddenly to the right, causing Nansel some difficulty in avoiding a collision. Reiman almost lost control of the transport, it running down the right shoulder of the highway and coming to a stop off the highway almost perpendicular to it at a point 147 feet south of the place where the body of the deceased lay on the pavement. The evidence of Reiman is to the effect that just as he cleared the Nansel truck he suddenly observed the deceased on the pavement only four to six feet ahead of him and that he turned the transport to the right in an attempt to avoid the accident. The evidence shows that the truck proper missed the deceased, but that he was struck by the front end of the tank of the transport. The evidence of both Nansel and Reiman is that the highway was straight, that the lights on their trucks were on and that each could see the pavement within the full range of his lights. The witness Nansel never saw the deceased until after he was struck. The body of the deceased was found crosswise on the pavement with the head to the east within a few inches of the curb.

Before passing the Nansel cattle truck, Reiman blinked his lights as a signal that he was going to pass. Nansel observed the signal and the fact that the lights on the transport were on. Reiman did not sound his horn or give any other audible signal of his intention to pass.

The witness Roessler, a surveyor, testifies that the highway south from the viaduct forms a vertical curve, making a gradual grade. He also testified that there is a lateral curve requiring a super elevation of the pavement on the left-hand side for a distance of 310 feet.

The witness Ditter, the driver of the first cattle truck, testifies that when he was on the viaduct proper, Nansel was beyond it. His evidence is to the effect that the transport was also over the viaduct when he saw the lights on the transport blinked and the transport then start around the Nansel truck at a point 200 feet south of the steel section of the viaduct.

Defendant Reiman testifies that when he saw the deceased first, he was walking south about two feet from the east or left-hand side of the pavement. Deceased did not turn his head and evidently did not hear the approach of the vehicles behind him.

On this evidence the jury returned a verdict for plaintiff in the amount of $10,000. Defendants urge that the evidence is insufficient to sustain a verdict and that defendants' motion for a directed verdict should have been granted, that the court erred in the giving of instructions and that the judgment is excessive.

It is urged that the oil transport was negligently operated on the left-hand side of the highway while on a curve, said alleged operation being contrary to statute. Comp.St.Supp.1941, § 39-11, 103. The testimony is somewhat in conflict as to the point where the oil transport started to pass the Nansel cattle truck. The evidence most favorable to plaintiff is that the start was made on the viaduct proper. The undisputed evidence is, however, that deceased was struck 786 feet south of the viaduct and that from a point 310 feet south of the viaduct the road was straight. For 476 feet, therefore before striking the deceased, the oil transport had been traveling on a straight road. Any violation of the rules of the road back on the overpass, therefore, had no causal connection with the accident. We think this evidence is too remote to have any force in establishing negligence on the part of the operator of...