Kruger v. Ervin Clark Const. Co., 34307

• Decision Date: 21 March 1958
• Docket Number: No. 34307,34307
• Citation: 166 Neb. 252,88 N.W.2d 778
• Parties: Paul S. KRUGER, Appellee, v. ERVIN CLARK CONSTRUCTION COMPANY, a partnership, Appellant.
• Court: Nebraska Supreme Court

Page 778

88 N.W.2d 778

166 Neb. 252

Paul S. KRUGER, Appellee, v. ERVIN CLARK CONSTRUCTION COMPANY, a partnership, Appellant.

No. 34307.

Supreme Court of Nebraska.

March 21, 1958.

Syllabus by the Court

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

2. 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 for the court is usually presented.

3. The giving of the statutory signal for a left turn under such circumstances will not absolve the driver from negligence where he fails to exercise care for his own safety, and that of others, by looking to the front and rear for the approach of other vehicles using the highway.

Cassem, Tierney, Adams, Kennedy & Henatsch, Omaha, for appellant.

O'Hanlon & O'Hanlon, Blair, for appellee.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE and BOSLAUGH, JJ.

MESSMORE, Justice.

This is an action at law brought by Paul S. Kruger as plaintiff, against Ervin Clark Construction Company a partnership, defendant, in the district court for Washington County to recover damages to the plaintiff's vehicles, and for personal injuries sustained by the plaintiff as a result of a collision between the plaintiff's vehicles and a vehicle driven by an employee of the defendant. The defendant filed a counterclaim to recover damages to its truck. The parties waived a jury trial and the trial was had to the court. The court rendered judgment in favor of the plaintiff, fixing the amount of his recovery in the sum of $693.40 and costs, and found against the defendant on its counterclaim. The defendant filed a motion for new trial or for dismissal of the plaintiff's cause of action. This motion was overruled. From this order, the defendant appeals.

The record discloses that the plaintiff is a farmer and cattle feeder. On October 1, 1956, at about 9 a. m., on a calm, clear day, he was driving a 1950 Ford pickup truck, the overall length of which was 14 feet. Attached to the truck by a 6-foot stub tongue was an ensilage wagon 12 feet in length. The total length of the vehicles he was driving was 32 feet. The truck was 6 feet wide, and the ensilage wagon was 7 feet wide. There were about 5 bushels of ear corn in the truck box, and the ensilage wagon was loaded with ensilage which was 'rounded up' in the wagon. The truck was equipped with a rear view mirror above the windshield, but there was no rear view mirror on the outside of the truck. The road the plaintiff was traveling on was a county road, 24 feet wide with a covering of gravel and crushed rock. The graveled portion of the road was 18 feet wide. The road runs east and west in a straight direction, with visibility good. The plaintiff was hauling ensilage from a farm owned by him to another farm when the accident occurred about a mile and a half east of Fort Calhoun.

The plaintiff testified that the ensilage was picked up about three-quarters of a mile east and about 100 rods south of the point of impact; that he turned onto the county road and proceeded west; that as he proceeded down the road he was traveling at a rate of speed of 10 to 15 miles an hour, intending to turn into a driveway to his farm; that the driveway was about 20 feet wide; that he extended his arm out of the left window which was down, and his head was close to the window, to signal the turn to the left; that when he first gave this signal he was 50 or 60 feet east of the driveway he was going to enter and at that time his speed was 3 miles an hour; and that he could see the load behind him on the ensilage wagon, and could see over it. He glanced in the rear view mirror at the time he was giving the signal and saw nothing behind him, and did not see the defendant's truck. Asked whether he could see back along the road for a considerable distance, he answered: 'Well, that is hard to say. The truck isn't in shape--to reconstruct the accident, the ensilage was piled up so that there wasn't a good vision. You couldn't see clear down the road but you could have seen the cab of a truck approaching from the rear.' When he first saw the defendant's truck he had turned his front wheels just about off of the road and heard a 'sliding of tires or whatever it was.' He looked, and the truck was almost on him. That was the first indication he had that the defendant's truck was approaching. He heard no signal. At the time of the impact, the front wheels of the plaintiff's truck were over the culvert (this would be on the south side of the road) and the back wheels were on the left-hand traveled track. The ensilage wagon was trailing in an 'arc.' The truck was facing due south. The rear wheels were in the southernmost lane. The defendant's truck, at the time of the impact, 'was coming down the middle' and struck the plaintiff's truck on the left rear wheel and the ensilage wagon on the left front side. The plaintiff's truck ended up on the south side of the road and the ensilage wagon in the ditch on the north side of the road.

On cross-examination the plaintiff testified that there were no signs or anything to indicate his lead-off road; that there were no lights on the ensilage wagon; and that he was 30 to 40 feet from the turn when he signaled. He further testified that he did not see the defendant's truck until just at the time of the impact; that the plaintiff's truck at that time was across the road; and that at the point of impact there is a clear view back to the east for a distance of 2 miles. He further testified on cross-examination that he was aware that a number of trucks were carrying riprap along that road; that at the time of the impact his vehicles were stretched completely across the county road; that the back wheels of the ensilage wagon were over next to the bank on the north shoulder of the road; that before making a left turn he pulled over to the right as far as possible, it being a sharp turn; and that he got over to the extreme right about 100 yards from the trun.

The defendant's driver testified that he was driving the defendant's truck westward at the time of the accident, carrying rock from the quarry to the river. The load weighed about 12 tons. The total number of trips made by defendant's trucks average 50 to 55 a day. He further testified that he saw the plaintiff's pickup truck and wagon when he was probably a mile or a mile and a half down the road; that he kept gradually working up to this truck to go around it, at a speed of 30 to 35 miles an hour, and was gradually closing the gap between the truck he was driving and the plaintiff's vehicles; and that the plaintiff's vehicles were traveling about 10 miles an hour and were on the right, or north, side of the road as he approached. At that time the left, or south, side of the road was open. As he attempted to pass the plaintiff's vehicles he reduced his speed to 20 miles an hour. The plaintiff made a left turn across the road into a private driveway. This witness was not aware of this driveway and had never seen a vehicle enter it. The plaintiff executed a sharp turn in front of him, at which time the defendant's vehicle was about 30 feet from the rear of the plaintiff's ensilage wagon and 60 feet from the front of the plaintiff's truck. He did not see a signal, and could not see the left door of the plaintiff's pickup truck because it was obscured by the ensilage wagon and its contents. When the plaintiff negotiated his turn to the left in front of the defendant's truck, this witness applied his brakes, at which time his speed was approximately 15 miles an hour. At 15 miles an hour it would take approximately 70 to 75 feet to stop this truck. His brakes took hold and slid his wheels on the gravel surface, and he proceeded ahead approximately 10 feet at a speed of 10 miles an hour. This witness further testified that at the time of the impact he was on the left, or south, side of the road; and that at that time the front of the plaintiff's pick-up truck was in the driveway a little ways, and the rear end of that truck was out in the road. The ensilage wagon was across the road. The truck he was driving turned over in the ditch on the north side of the road about 10 feet beyond the point of impact. He did not sound his horn at any time. He applied his brakes when he was 20 feet from the point of the impact.

He further testified that when he was about 150 to 175 feet from the plaintiff's vehicles he started moving to the left, or south, side of the highway in an endeavor to go around the plaintiff's vehicles; that he reached the extreme south side of the highway approximately 100 feet from the point of impact; that as he approached to pass the plaintiff's vehicles, the plaintiff was on the extreme north or right side of the road...