Mann v. Standard Oil Co.

• Decision Date: 31 May 1935
• Docket Number: 29311.
• Citation: 261 N.W. 168,129 Neb. 226
• Parties: MANN v. STANDARD OIL CO.
• Court: Nebraska Supreme Court

261 N.W. 168

129 Neb. 226

MANN v. STANDARD OIL CO.

No. 29311.

Supreme Court of Nebraska.

May 31, 1935

Syllabus by the Court.

1. The statutes of this state provide that the driver of a motor vehicle upon a highway shall indicate an intention to turn to the left by extending the arm horizontally to the left and beyond the side of the vehicle and by pointing to the left with the index finger. Comp. St. Supp. 1933, § 39-1147.

2. The violation of a statute regulating the use of vehicles on a highway is evidence of negligence on the part of the person violating it.

3. In an action for damages for injuries sustained in a collision between an automobile driven by plaintiff and a truck owned by the defendant, a custom or practice of automobile and truck drivers to signal an intention to turn to the left by holding the left front door open is not binding on the plaintiff so as to excuse defendant's driver from violating the statute in that regard.

Appeal from District Court, Madison County; Stewart, Judge.

Action by Allie R. Mann against the Standard Oil Company. Judgment for plaintiff. From an order overruling its motion for new trial, defendant appeals.

Affirmed.

W. H Herdman, of Omaha, and Moyer & Moyer, of Madison, for appellant.

George W. Dittrick and Jack Koenigstein, both of Norfolk, for appellee.

Heard before ROSE, GOOD, EBERLY, DAY, PAINE, and CARTER, JJ., and BLACKLEDGE, District Judge.

CARTER, Justice.

This suit was commenced by the appellee, Allie R. Mann, on two causes of action to recover damages to person and property caused by a collision between an automobile owned and driven by the appellee and an oil truck owned by the appellant Standard Oil Company, and operated by one of its drivers. On the trial below, the jury returned a verdict for appellee and judgment was entered thereon. From the overruling of its motion for a new trial, the appellant brings the case to this court on appeal.

The only assignment of error made by the appellant was the giving by the trial court of instruction No. 10 1/2, which is as follows: " Evidence bearing on the question of certain alleged customs has been offered and received in evidence, in this case. You are instructed that the Nebraska statute regulates the matter of the use of motor vehicles on the public highways and defines the rights and duties of such vehicle on such highways and these are controlling in this state. No custom even if established by the evidence could or would supersede the express requirements of the statute and a violation of such a statute, if such you find, would be evidence of negligence regardless of any custom and you are instructed that such evidence of certain customs has been received and may be considered by you only as bearing on the questions of negligence and contributory negligence, to be considered by you along with all the other evi dence and circumstances disclosed by the record and bearing on such questions of negligence and contributory negligence."

The evidence upon which this instruction is based is substantially as follows: The driver of the truck testified that he was driving west on the right-hand side of the highway in question at a speed of between 20 and 30 miles an hour; that, when he was approximately 300 yards from the driveway of Mr. Kline's place, he looked through the rear vision glass and saw appellee's car approaching 200 or 300 yards back; that he then opened the left door and held it open, until the collision occurred, as a signal that he was about to turn into the driveway. As he turned across the paved highway, his truck collided with appellee's car. Testimony was produced to the effect that the holding of the left door of a car or truck open was a recognized signal of an intention to turn to the left established by custom and usage. Under this statement of the record, did the trial court err in giving the instruction complained of?

On May 5, 1933, the date of the collision, the statutes of Nebraska provided: " An intention to turn to the...