Kipf v. Bitner
| Decision Date | 06 August 1948 |
| Docket Number | 32463. |
| Citation | 33 N.W.2d 518,150 Neb. 155 |
| Parties | KIPF v. BITNER. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. A motion for directed verdict must, for the purpose of decision thereon, be treated as an admission of the truth of all material and relevant evidence submitted on behalf of the party against whom the motion is directed, and such party is entitled to have every controverted fact resolved in his favor and have the benefit of every inference that can reasonably be deduced from the facts in evidence.
2. Where different minds may reasonably draw different conclusions from the evidence adduced or if there is a conflict in the evidence as to whether or not they establish negligence or contributory negligence, and the degree thereof, when one is compared with the other, such issues must be submitted to the jury.
3. 'Admissions' in the law of evidence are concessions or voluntary acknowledgment made by a party of the existence of certain facts, and they are ordinarily classified as judicial and extrajudicial.
4. A judicial admission is a formal act done in the course of judicial proceedings which is a substitute for evidence thereby waiving or dispensing with the production of evidence by conceding for the purpose of litigation that the proposition of fact alleged by the opponent is true.
5. An extrajudicial admission is simply an item of evidence in the mass of evidence adduced during a trial, admissible in contradiction and impeachment of the present claim and other evidence of the party making the admission.
6. A judicial admission is ordinarily final and conclusive upon the party by whom it was made, unless the trial court, in the exercise of a judicial discretion, timely relieves him from that consequence.
7. An extrajudicial admission is not ordinarily final and conclusive upon the party by whom it was made, in the absence of controlling elements of estoppel.
8. An extrajudicial admission appearing in the deposition of a party taken before trial is not ordinarily final and conclusive upon him, but it may be competent and admissible as evidence in contradiction and impeachment of his present claim and his other evidence given at the trial, to be given such weight as the trier of fact deems it entitled.
Davis Stubbs & Healey, of Lincoln, for appellant.
Sterling F. Mutz, of Lincoln, for appellee.
Heard before SIMMONS, C. J., and PAINE, MESSMORE, YEAGER, CHAPPELL, and WENKE, JJ.
This action was brought to recover for personal injuries and property damages arising out of a collision between plaintiff's motorcycle and defendant's automobile, at an intersection upon which traffic was controlled by an overhead signal light. Upon trial to a jury, plaintiff was awarded a verdict and judgment. Defendant's motion for new trial was overruled, and she appealed, assigning substantially that the trial court erred: (1) In overruling defendant's motion for a directed verdict; (2) in giving instruction No. 2; and (3) that the verdict and judgment were contrary to the law and the evidence. We conclude that the assignments should not be sustained.
Without dispute, the accident occurred in the intersection of 48th and O Streets in Lincoln, between 4:35 and 4:40 p.m., October 4, 1946. It was cloudy, misty, and drizzling rain. The pavement was wet. Prior to the accident, plaintiff was driving his motorcycle west, and defendant was driving her automobile east on O Street. The overhead signal light was green for east and west traffic at the time of the accident.
The record discloses that the pavement on O Street and on 48th Street south of O Street was 30 feet wide from curb to curb, but the pavement on 48th Street north of O Street was 42 feet wide from curb to curb. The width of the intersection was 120 feet between property lines on the north side, and 66 feet on the south side of O Street. Therefore, the angling curb lines on the northwest and northeast corners of the intersection were constructed in a wider arc for the movement of traffic into 48th Street from O Street, or into O Street from 48th Street. Thus, with the property lines extended on this intersection of varying dimensions, a vehicle coming from the east on O Street would enter the intersection approximately 50 feet east of the center line of 48th Street and a vehicle coming from the west on O Street would enter the intersection approximately 45 feet west of the center line of 48th Street.
A plat, drawn to scale, and appearing in the record as offered by plaintiff, illustrates the foregoing situation. It also demonstrates, by designation, the manner and circumstances of the accident, together with the point of impact as supported by evidence adduced in plaintiff's behalf. Photographs appearing in the record also illustrate the topography of the intersection, and its approaches. Also appearing in the record, as offered by plaintiff, are photographs taken three or four minutes after the accident. They graphically illustrate the approximate position of the vehicles at the time of the impact and after the accident, since competent evidence disclosed that they moved but little, if any, after the impact. They also picture defendant sitting in her car with two other passengers, and plaintiff lying injured where he fell on the pavement.
Evidence adduced in plaintiff's behalf, as summarized, was substantially as follows: Plaintiff, with a co-employee friend riding behind him on plaintiff's motorcycle equipped for two passengers, left their place of employment at 65th and O Streets immediately after 4:30 p.m., and proceeded west in the right lane of traffic. His windshield served only as such, and coming up only about to his shoulders, enabled him to see over the top of it. At a slow sign some distance east of 48th Street, plaintiff, traveling at 25 miles an hour, shifted into intermediate and slowed down. As he approached the intersection of 48th and O Streets, the traffic light was green. When he was in the intersection about 10 feet west of the east property line of 48th Street extended, and driving at 17 or 18 miles an hour, plaintiff saw defendant's car coming east in the south lane of O Street about 25 feet west of the intersection. He could not estimate her speed. Plaintiff proceeded on west in the intersection, and while traveling at about 15 miles an hour, saw defendant suddenly, without previously having given any signal or warning, come on out in a circular angle to the northeast, and cross the center line of O Street at a point west of the intersection. Thereupon, plaintiff turned north and west to avoid collision, but, upon seeing that one was imminent, first shut off the gas, and then applied his brakes, but the vehicles collided at a point, as shown on the plat, in the northwest corner of the intersection approximately 35 feet west of the center line of 48th Street and 25 feet north of the center line of O Street, or approximately 40 feet northwest of the overhead signal light, 20 feet northeast of the west property line of 48th Street extended, and 10 feet southeast of the west curb as it curved to the northeast in forming the west curb line of 48th Street.
At the time of the collision, plaintiff was traveling about eight miles an hour, and defendant was traveling five or six miles an hour. The front wheel of plaintiff's motorcycle and defendant's front bumper collided to the right of the center of defendant's car. The photographs so disclose. After collision, the vehicles both stopped immediately, with the motorcycle under the front of the car. Its motor was still running, whereupon someone stopped it, pulled the motorcycle from under and stood it upright near the car, which car then moved forward about a foot, where the vehicles remained when the photographs were taken.
Plaintiff was thrown by the impact northwest over his windshield to the pavement, where he lay six or eight feet northwest of the point of impact. He was conscious, but concededly received serious and permanent injuries, disability, and damages, the amount of which was not questioned here. As he lay in the street, plaintiff noticed that defendant's windshield was hazed over with mist and rain.
The other rider of the motorcycle, who, being taller than plaintiff could see over him, substantially corroborated plaintiff's testimony in its material aspects. He was thrown into the grille of defendant's car, and then over its hood to the pavement three or four feet north of defendant's car, where, injured, he crawled or dragged himself on his side, three or four feet to the curb.
Another fellow employee of plaintiff, also proceeding west on O Street in a car, arrived at the scene of the accident almost momentarily after it happened, and, being an amateur photographer, forthwith took the photographs which generally supported and corroborated the material evidence adduced by plaintiff and in his behalf.
Evidence adduced in defendant's behalf was substantially as follows: There were two other ladies with defendant in her Plymouth coupe as it was being driven east on O Street. Concededly, the windshield wiper on the left or defendant's side was working, but the one on the other side was not working. Defendant testified, however, that she had very clear vision, and that after the accident her windshield was hazed over by the escape of fluid from her car radiator. As defendant came up the hill before reaching the intersection, the light was red, and there were no cars in front of her. The light turned green when she was about 125 feet west of the intersection, and she thereafter put out her hand straight to give a signal for a left turn, and continued to do so for 110 or 115 feet, until she arrived at the point of turning. Defendant noticed plainti...
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