Kasper v. Carlson

Citation232 Neb. 170,440 N.W.2d 195
Decision Date19 May 1989
Docket NumberNo. 87-745,87-745
PartiesDoyle E. KASPER, Personal Representative of the Estate of Danny E. Kasper, Deceased, Appellant, v. Howard E. CARLSON and Claude Cappel, Appellees.
CourtNebraska Supreme Court

Syllabus by the Court

1. Directed Verdict. A trial court should direct a verdict as a matter of law only when the facts are conceded, undisputed, or such that reasonable minds can draw but one conclusion therefrom. The party against whom the verdict is directed is entitled to have every controverted fact resolved in his or her favor and to have the benefit of every inference which can reasonably be drawn from the evidence.

2. Motor Vehicles: Negligence. It is negligence as a matter of law for a motorist to drive a motor vehicle on a public highway, at any time, at a speed or in such manner that it cannot be stopped or its course changed in time to avoid a collision with an object or obstruction discernible within his range of vision in the direction he was traveling.

3. Motor Vehicles: Negligence. The driver of an automobile is legally obligated to keep such a lookout that he can see what is plainly visible before him and to operate his automobile in such a manner that he can stop to avoid collision with any object in front of him.

4. Motor Vehicles: Highways: Right-of-Way. A driver of a motor vehicle about to enter a highway protected by stop signs is required to come to a complete stop as near the right-of-way as possible before driving onto the highway. After stopping, the driver must yield the right-of-way to any vehicle approaching so closely on the favored highway as to constitute an immediate hazard if the driver at the stop sign moves into or across the intersection.

5. Trial: Expert Witnesses: Appeal and Error. The admission of evidence from expert witnesses is a matter left to the discretion of the trial court, and its ruling will be upheld absent an abuse of that discretion.

Warren C. Schrempp and Lee R. Terry, of Schrempp, Gross & Salerno, Omaha, and Dennis L. Arfmann, of Winner, Nichols, Douglas, Kelly & Arfmann, Scottsbluff, for appellant.

Harold W. Kay, of Kay & Kay, North Platte, for appellees.

HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, SHANAHAN, GRANT, and FAHRNBRUCH, JJ.

WHITE, Justice.

This is an appeal from a wrongful death action filed by Doyle E. Kasper on behalf of his son, Danny E. Kasper. This action arose from an accident which occurred on May 11, 1984, near McCook, Nebraska, between a car driven by Danny Kasper and a truck driven by Howard E. Carlson. The defendants in this action are both the driver, Carlson, and Claude Cappel, the owner of the vehicle and the employer of Carlson. At trial, the jury returned a verdict against the plaintiff, Doyle Kasper. The plaintiff appeals, assigning as errors: (1) the district court's overruling the plaintiff's motion for a directed verdict, (2) the failure of the district court to instruct the jury that the defendants were negligent as a matter of law, and (3) the admission of testimony by a "reconstruction" expert witness regarding the speed of the decedent before the accident. Because we believe that the trial court erred in not instructing the jury that the defendant Carlson was negligent as a matter of law, but find that a factual question remains regarding the contributory negligence of the decedent, we remand this cause for a new trial.

On the evening of May 11, 1984, Danny Kasper went to the home of his good friend, Jeffrey Hall, and the two of them went to "cruise" Main Street in McCook, as did most other local high school students. At approximately 10:30 p.m., Kasper and Hall proceeded south out of McCook on West River Road. River Road is a two-lane highway that runs north-south. There are various roads intersecting the highway from the east and west. The intersections are protected by stop signs. The accident occurred at a "T" intersection, where a gravel east-west county road intersects River Road. Entry onto the paved River Road from the east-west gravel road is controlled by a stop sign located 55 feet west of River Road.

On the date of the accident, Carlson was proceeding east on the gravel county road in a truck owned by his employer, Cappel. Carlson testified that he knew a stop sign existed, and he stopped, looking both to his left (north) and right (south). At this time the decedent was driving south on River Road, approaching the intersection from the north. After stopping back at the stop sign, Carlson proceeded to the pavement of River Road. He testified that following his stop at the stop sign, 55 feet back from the intersection, he never again looked to his left, but turned to the left across the southbound lane of River Road, while looking to his right. Carlson testified that he first looked back to the left again after the front of his truck was about halfway through the intersection. The defendant testified that he never saw the headlights of the decedent's car until he looked to the left when he was already in the intersection.

Hall, the passenger in the Kasper vehicle, survived the crash. He testified at trial regarding what he could remember of the collision. Hall could not recall where he was looking at the time the Kasper vehicle neared the intersection. In fact, he did not see the pickup until seconds before the collision. He did not see Carlson enter River Road.

The force of the impact crushed the front of Kasper's Camaro, primarily on the left side. The Camaro slammed into the left side of the truck and was "submarined" under it, causing the truck to flip upside down. Kasper was killed in the accident, and both Hall and Carlson were injured.

In the appellant's first assignment of error, he contends that the district court committed error by not directing a verdict for the plaintiff. We believe this contention is in error. A trial court should direct a verdict as a matter of law only when the facts are conceded, undisputed, or such that reasonable minds can draw but one conclusion therefrom. Sundeen v. Lehenbauer, 229 Neb. 727, 428 N.W.2d 629 (1988). The party against whom the verdict is directed is entitled to have every controverted fact resolved in his or her favor and to have the benefit of every inference which can reasonably be drawn from the evidence. If there is any evidence which will sustain a finding for the party against whom the judgment is made, the case may not be decided as a matter of law. Carnes v. Weesner, 229 Neb. 641, 428 N.W.2d 493 (1988). Although we find, as discussed below, that the trial court erred in not instructing the jury that the defendant was negligent as a matter of law, there was a substantial amount of evidence regarding the speed of the Kasper vehicle at the time of the accident. Evidence that the decedent may well have exceeded the speed limit at the time of the collision constitutes an issue of fact regarding the contributory negligence of the decedent and is a proper issue for the jury. Therefore, this first assignment of error is without merit.

Regarding the appellant's second assignment of error, we agree that the trial court erred in not instructing the jury that the defendant was negligent as a matter of law. This case involves a right-of-way violation by the defendant Carlson, and there are a number of Nebraska cases applicable to this situation. It is well established in this jurisdiction that a motorist is required to yield the right-of-way to a vehicle traveling on a highway protected by stop signs if the vehicle is close enough to the intersection to pose an immediate hazard. Chlopek v. Schmall, 224 Neb. 78, 396 N.W.2d 103 (1986). The appellees agree with this proposition in general, but state that in this case, because the issue of the excessive speed of the decedent's vehicle was controverted, the issue of the negligence of the defendant was properly submitted to the jury and a verdict could not have been directed. We disagree.

In Chlopek, we also addressed the issue of the excessive speed of the plaintiff, a case involving facts very similar to the ones at issue in this case. In Chlopek, we stated:

In arguing that it was excessive, the defendants would invoke the "range of vision" rule. It is a general rule that it is negligence as a matter of law for a motorist to drive a motor vehicle on a public highway, at any time, at a speed or in such manner that it cannot be stopped or its course changed in time to avoid a collision with an object or obstruction discernible within his range of vision in the direction he was traveling.... " ' "The basis of the foregoing general rule is that the driver of an automobile is legally and mandatorily obligated to keep such a lookout that he can see what is plainly visible...

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11 cases
  • Davis v. Knippling
    • United States
    • South Dakota Supreme Court
    • April 1, 1998
    ...necessary, look, and yield the right-of-way as required by SDCL 32-29-3. See also Burmeister, 139 N.W.2d at 229; Kasper v. Carlson, 232 Neb. 170, 440 N.W.2d 195, 198 (1989); Muirhead v. Gunst, 204 Neb. 1, 281 N.W.2d 207, 209 (1979); Smith v. Kellerman, 4 Neb.App. 178, 541 N.W.2d 59, 63 (199......
  • Dotzler v. Tuttle
    • United States
    • Nebraska Supreme Court
    • January 5, 1990
    ...a matter left to the discretion of the trial court, and its ruling will be upheld absent an abuse of that discretion. Kasper v. Carlson, 232 Neb. 170, 440 N.W.2d 195 (1989); Sanchez v. Derby, 230 Neb. 782, 433 N.W.2d 523 (1989). Neb.Rev.Stat. § 27-702 (reissue 1985) provides: If scientific,......
  • Suiter v. Epperson
    • United States
    • Nebraska Court of Appeals
    • October 14, 1997
    ...Chlopek concluded that the trial court had been correct in concluding that Doornbos' truck was at such a distance In Kasper v. Carlson, 232 Neb. 170, 440 N.W.2d 195 (1989), the Supreme Court once again directed a verdict of negligence based on a set of facts similar to those in Chlopek and ......
  • Vilas v. Steavenson, s. S-90-730
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    • Nebraska Supreme Court
    • March 12, 1993
    ...his automobile in such a manner that he can stop it and avoid a collision with any object in front of him. Kasper v. Carlson, 232 Neb. 170, 174, 440 N.W.2d 195, 197 (1989); See, also, Mantz v. Continental Western Ins. Co., 228 Neb. 447, 422 N.W.2d 797 Accordingly, there was evidence before ......
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