Keller v. Wellensiek

• Decision Date: 11 December 1970
• Docket Number: No. 37607,37607
• Citation: 181 N.W.2d 854,186 Neb. 201
• Court: Nebraska Supreme Court
• Parties: Theodore KELLER, Appellant, Cross-Appellee, v. Lee WELLENSIEK and Henry F. Wellensiek, Appellees, Cross-Appellants.

Page 854

181 N.W.2d 854

186 Neb. 201

Theodore KELLER, Appellant, Cross-Appellee, v. Lee WELLENSIEK and Henry F. Wellensiek, Appellees, Cross-Appellants.

No. 37607.

Supreme Court of Nebraska.

Dec. 11, 1970.

Syllabus by the Court

1. A left-hand turn across a public highway between intersections is inherently dangerous and one making such a movement is required to exercise a degree of care commensurate with the danger.

2. A farm tractor is a motor vehicle within the meaning of the statutes governing the operation of motor vehicles on public highways of the state.

3. When the driver of a motor vehicle turning across a highway between intersections fails to look to the front and rear for oncoming traffic at a time and place when to look would be effective, or looks and negligently fails to see that which is in plain sight, or is in a position where he cannot see, a question of law for the court is usually presented.

4. An owner of a motor vehicle who lends his vehicle to a minor who is forbidden by statute to operate a motor vehicle because of his age is guilty of negligence and liable for injuries caused by such minor in the use of the vehicle.

5. In an appeal from an order of the district court granting a new trial where the plaintiff prays for the reversal of the order and a reinstatement of the verdict, the contention of plaintiff that the evidence was insufficient to submit the issue of contributory negligence to the jury will be deemed to have been waived upon a holding that the new trial was improvidently granted.

John McArthur, A. James McArthur, Lincoln, for appellant.

Baylor, Evnen, Baylor, Curtiss & Grimit, Lincoln, for appellees.

Heard before WHITE, C.J., and CARTER, SPENCER, BOSLAUGH, SMITH, McCOWN, and NEWTON, JJ.

CARTER, Justice.

This is an action for personal injuries and property damage suffered by the plaintiff as the result of a collision between plaintiff's automobile and a farm tractor owned by the defendant, Henry F. Wellensiek, and operated by his 12-year-old son, Lee, on a public highway near Syracuse, Nebraska, on July 12, 1968. The jury returned a verdict for the plaintiff against both defendants in the amount of $49,793.98. The defendants filed motions for a new trial which were sustained by the trial court. The plaintiff has appealed from the trial court's order granting a new trial. The defendants have cross-appealed alleging errors prejudicial to them.

On July 12, 1968, the plaintiff and a fellow employee, James T. Wagner, were returning home from their employment, each driving his own automobile. As they approached Syracuse from the south on State Highway No. 50, they observed a farm tractor on the highway moving north. Wagner was several hundred yards in front of the plaintiff. He turned to the left and passed the tractor without incident at a speed that he estimated at about 65 miles per hour. Wagner observed the plaintiff in his rear vision mirror as plaintiff turned into his left lane to pass the tractor and saw the tractor turn to the left across the highway to enter a private driveway. He saw the resulting collision and immediately returned to the scene of the accident.

Lee Wellensiek was the driver of the tractor. He was the son of the defendant, Henry F. Wellensiek, and at the time of the accident was 12 years of age. He testified that he lived with his parents on a farm a mile south of the accident scene. He testified that a neighbor had requested assistance in starting a stalled tractor and, at the direction of his father, he was going to the farm on which the private lane was located to render the requested assistance. Lee testified that three pickups and the Wagner car passed him before the accident occurred. He stated that he looked back when he was 1/16 of a mile from the lane, and saw plaintiff's car 3 blocks back. When 60 feet from the lane he looked back and Keller was 2 blocks back. When he was 30 feet from the lane he again looked and Keller was 1 block back. He said he thought it safe to turn and did so without looking and the accident resulted. Lee gave no signal of his intention to turn into the lane. The tractor was not equipped with turn signals. A farm tractor is a motor vehicle within the meaning of the statutes regulating the use of motor vehicles on public highways. S. 39--741, R.R.S.1943.

The tractor and car were seriously damaged. Both drivers were injured. The Keller car laid down tire marks for 149 feet. The front wheels of the tractor were at the west edge of the pavement when the collision occurred. Plaintiff attempted to swerve back to his right-hand lane to avoid a collision without success. Visibility was good and the pavement dry. The road was level for more than 3 blocks each way from the scene of the accident.

The plaintiff contends that the trial court erred in granting a new trial for the reason that the case was fairly tried and that there is no error in the record prejudicial to the defendants. Defendants assert that the court erred in imputing the negligence of Lee to his father, in failing to direct a verdict for the father, and in giving instructions Nos. 2 and 6 to the jury. Plaintiff contends that the court erred in not directing a verdict for the plaintiff on the issue of liability, in submitting the issue of contributory negligence, in giving instructions Nos. 5, 8, and 9, and in allowing the opinion evidence of defendant's expert witness, W. F. Weiland.

The plaintiff moved at the close of the evidence for a directed verdict against Lee Wellensiek on the issue of negligence as a matter of law. This motion should have been sustained. The undisputed facts show that the tractor was proceeding north on its right-hand side of the highway. Plaintiff came up behind the tractor and turned into the left-hand lane for the purpose of passing the tractor. The driver of the tractor, without indicating any intention to turn, turned left across the highway between intersections to enter a private lane. The tractor was not equipped with a signaling device and its operator gave no signal of his intention to turn. The result was he drove the tractor into plaintiff's oncoming car and the accident occurred. This is negligence on the part of the driver of the tractor as a matter of law.

The defendant Lee Wellensiek attempts to avoid the charge of negligence on the theory that he looked back before turning left across the highway and thought he could safely do so. He testified that when he was 1/16 of a mile south of the lane he looked back and saw plaintiff's car 3 blocks back. When he was 60 feet from the lane he looked back again and saw the car 3 blocks back. When he was 30 feet from the lane he again looked back and the car was 1 block back. Under his own estimates of the respective speeds of the vehicles, he should have known that when he traveled 30 more feet the car would have been upon him. But the fact is that he did not look at a time when the danger was apparent. After looking 30 feet from the lane, he did not look again, but drove his tractor the last 30 feet and turned across the highway without looking or signaling his intention to turn. In Petersen v. Schneider, 153 Neb. 815, 46 N.W.2d 355, we said: '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...