Mantz v. Continental Western Ins. Co.

Decision Date06 May 1988
Docket NumberNo. 87-659,87-659
Citation228 Neb. 447,422 N.W.2d 797
PartiesJack MANTZ, Appellant, v. CONTINENTAL WESTERN INSURANCE COMPANY, a Member of Armco Insurance Group, Appellee.
CourtNebraska Supreme Court

Syllabus by the Court

1. Directed Verdict. The party against whom a motion for a direction of liability is made 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 motion is made, the case may not be decided as a matter of law.

2. Directed Verdict. A directed verdict is proper only where reasonable minds cannot differ and can only draw one conclusion from the evidence.

3. Trial: Negligence. Where reasonable minds may draw different conclusions from the evidence, the question of negligence is for determination by the jury.

4. Motor Vehicles: Pedestrians: Negligence. When a pedestrian in a place of safety sees or could have seen the approach of a moving vehicle in close proximity to him or her and suddenly moves from the place of safety into the path of such vehicle and is struck, such conduct constitutes contributory negligence more than slight as a matter of law and precludes recovery.

5. Motor Vehicles: Negligence: Right-of-Way. The driver of a motor vehicle has the duty to keep a proper lookout and watch where he is driving even though he is rightfully on the highway and has the right-of-way. He must keep a lookout ahead or in the direction of travel, and he is bound to take notice of the road, to observe the conditions along the way, and to know what is in front of him for a reasonable distance.

6. Motor Vehicles: Negligence. The range of vision rule is applicable, notwithstanding that a motorist's vision is impaired by atmospheric or weather conditions, such as falling or blowing snow, rain, mist, or fog.

7. Motor Vehicles: Negligence. A driver ordinarily has a duty to drive an automobile on a public street at night in such a manner that he can stop in time to avoid a collision with an object within the area lighted by his headlights, and the driver is negligent if he fails to do so. A motorist is not, however, negligent where the object cannot be observed by the exercise of ordinary care in time to avoid a collision.

8. Motor Vehicles: Negligence: Words and Phrases. In operating a motor vehicle upon a public street, a driver has a duty to have his vehicle under such reasonable control as will at all times enable him to avoid a collision or accident, assuming that other drivers or people upon the highway are also exercising ordinary care. Reasonable control requires motor vehicle drivers to take into consideration such factors as the speed of their automobiles, the condition of the highway upon which they are traveling, the traffic involved, and any other factors affecting driving conditions that may have been developed by the evidence.

9. Circumstantial Evidence: Proof. It is not necessary for a plaintiff to prove his case solely by direct evidence. A plaintiff may rely partially upon circumstantial evidence to support his position.

William J. Elder of McCormack, Cooney, Mooney & Hillman, Omaha, for appellant.

Alan L. Plessman, Lincoln, for appellee.

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

FAHRNBRUCH, Justice.

Plaintiff-appellant, Jack Mantz, was injured when an uninsured station wagon knocked him to the pavement and again when a hit-and-run Datsun ran over one or both of his legs while Mantz was lying on the street. The accidents occurred on 13th Street in Omaha on November 9, 1984.

Mantz sued his own insurance carrier, the defendant-appellee, Continental Western Insurance Company, for damages resulting from each accident. The suit was brought under the uninsured motorist clause of Mantz' insurance policy. After Mantz presented evidence before a jury and rested, a verdict was directed in favor of the defendant, Continental, in regard to both accidents. Mantz appeals. We affirm the trial court's directed verdict as to the station wagon accident, reverse it as to the Datsun accident, and remand the cause with directions.

Mantz' petition claims that the station wagon driver and the Datsun hit-and-run driver each negligently failed to keep a proper lookout, failed to have reasonable control of her/his respective vehicle, failed to yield the right-of-way to the plaintiff, and negligently operated her/his respective vehicle at a speed in excess of that which was reasonable and prudent under the conditions existing at the time of the accidents. Mantz further claims that the station wagon driver placed him in a position of peril whereby Mantz suffered additional injuries. Finally, Mantz claims that the station wagon driver was negligent in failing to extricate him from the position of peril in which she placed him, thereby contributing to his injuries.

In its amended answer, Continental claims that Mantz was contributorily negligent in failing to maintain a proper lookout and in failing to yield the right-of-way to the vehicles involved; that Mantz suddenly left a curb or other place of safety and walked or ran into the path of the station wagon, which was so close that it was impossible for the driver to stop; and, finally, that Mantz assumed the risk of injury and damage.

The operable facts in this case reflect that after working all day on Friday, November 9, 1984, Mantz cashed his paycheck and went to the Ball Park Bar. He arrived at the tavern around 7 p.m. and drank eight or nine bottles of beer and a "shot" of whiskey during a 3 1/2-hour period.

Mantz left the tavern about 10:30 p.m. Once outside the tavern, he noticed that it was raining, sleeting, and snowing simultaneously. Mantz waited for a while in a protected area just outside the tavern door. His vehicle was parked across the street at a service station on the east side of 13th Street. Thirteenth Street runs north and south and has two lanes each for northbound and southbound vehicular traffic. Mantz said he saw three or four cars 200 to 225 feet to the south in the northbound lanes of traffic. Looking north, Mantz saw two southbound cars 300 to 325 feet away. The plaintiff testified he wanted to go east across 13th Street to his vehicle. He decided he could run safely across the southbound lanes to the center of the street. Mantz said that with his head down, while looking to the side, he ran as "[f]ast as I could" to the center of the street and that while he was standing there, a northbound car passed him. He further testified that while he was standing on the centerline of the street he was bumped from behind by a southbound station wagon. There was testimony that Mantz was in the southbound lane when the lady driver in the station wagon honked at him. There was evidence that the station wagon did not swerve after hitting Mantz. It stopped in its own southbound lane about 2 or 3 feet in front of where Mantz lay.

The station wagon's emergency flashers were turned on, as were the flashers of a southbound car that had stopped just north of the station wagon. A third southbound vehicle had also stopped near the west curb in the vicinity of where Mantz was lying. Paul Munkel, a passenger in that vehicle, went to where Mantz lay on the pavement. Munkel put his own jacket over the injured man and began directing traffic. A girl came from the tavern and put her jacket over Mantz. People from the service station also arrived at the scene. A small crowd gathered in the area of the injured plaintiff.

While Munkel was directing traffic, he noticed a northbound Datsun automobile coming toward him and the injured Mantz. This vehicle was in the lane closest to the centerline. At this time, only Mantz' legs were protruding into the northbound lane of traffic, Munkel testified. Munkel tried to flag the Datsun in an effort to divert it east, away from Mantz and away from the centerline of the street. The Datsun, bearing a No. 59 county Nebraska license plate, did not vary its course. It "just [came] straight forward." Munkel had been "right where the man was [lying]." Munkel was required to jump out of the Datsun's path to keep from being hit. The evidence reflects that the Datsun ran over one or both of Mantz' legs and proceeded northbound without stopping. Although Munkel could clearly see the profile of the Datsun's male driver, he could not identify him, nor could Munkel see the remaining numbers of the vehicle's license plate.

Mantz' policy of insurance with Continental clearly covered hit-and-run accidents. Part C, "Uninsured Motorists Coverage," specifically defines an "uninsured motor vehicle" as one "which is a hit and run vehicle whose operator or owner cannot be identified and which hits" the insured. The station wagon driver was uninsured because her insurance carrier had become insolvent.

We now examine whether the trial court properly directed a verdict against the plaintiff in each accident involved here. When Mantz rested after adducing evidence in his case in chief, the defendant moved for a directed verdict in its favor in regard to each accident for two reasons: (1) that the plaintiff failed to establish a prima facie case and (2) that the evidence established as a matter of law that Mantz was contributorily negligent to a degree sufficient to preclude any recovery.

In reviewing a directed verdict, the party against whom a motion for a direction of liability is made 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 motion is made, the case may not be decided as a matter of law. Kahrhoff v. Kohl, 219 Neb. 742, 366 N.W.2d 128 (1985). See, also, Tiede v. Loup Power Dist., 226...

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