Maska v. Stoll

• Decision Date: 01 March 1957
• Docket Number: No. 34072,34072
• Citation: 163 Neb. 857,81 N.W.2d 571
• Parties: Mrs. Harry MASKA, a/k/a Phyllis Maska, Appellee, v. Clyde C. STOLL, Appellant.
• Court: Nebraska Supreme Court

Page 571

81 N.W.2d 571

163 Neb. 857

Mrs. Harry MASKA, a/k/a Phyllis Maska, Appellee, v. Clyde C. STOLL, Appellant.

No. 34072.

Supreme Court of Nebraska.

March 1, 1957.

Syllabus by the Court

1. If the trial court gave no reasons for its decision in sustaining the motion for new trial, then the appellant meets the duty placed upon him when he brings the record here with his assignments of error and submits the record to critical examination with the contention that there was no prejudicial error. The duty then rests upon the appellee to point out the prejudicial error that he contends exists in the record and which he contends justifies the decision of the trial court. The appellant then in reply has the right, if he desires, of meeting those contentions.

2. In determining the sufficiency of the evidence to sustain a verdict, the evidence must be considered most favorably to the successful party, any controverted fact must be resolved in his favor, and he must have the benefit of the inferences reasonably deducible from the evidence.

3. When a person enters an intersection of two streets or highways he is obligated to look for approaching cars and to see those within that radius which denotes the limit of danger. If he fails to see a car which is favored over him under the rules of the road, he is guilty of contributory negligence sufficient to bar a recovery as a matter of law. If he fails to see an automobile not shown to be in a favored position, the presumption is that its driver will respect his right-of-way and the question of his contributory negligence in proceeding to cross the intersection is a jury question.

4. Where two motorists approach an intersection at or about the same time, the driver approaching from the right at a lawful speed has the right-of-way, and he may ordinarily proceed to cross, having a legal right to assume that his right-of-way will be respected by the other party, but if the situation is such as to indicate to the mind of an ordinarily careful and prudent person in his position that to proceed would probably result in a collision, then he should exercise ordinary care to prevent an accident even to the extent of waiving his right-of-way.

5. The lawfulness of the speed of a motor vehicle within the prima facie limits fixed is determined by the further test of whether the speed was greater than was reasonable and prudent under the conditions then existing.

6. Where different minds may draw different conclusions from the evidence in regard to negligence, the question should be submitted to the jury.

7. It is the duty of the trial court, without request, to instruct the jury on each issue presented by the pleadings and supported by evidence. A litigant is entitled to have the jury instructed as to his theory of the case as shown by pleadings and evidence, and a failure to do so is prejudicial.

8. When a statute or a city ordinance is ambiguous or susceptible of two constructions, one of which creates absurdities, unreasonableness, or unequal operation and the other of which avoids such a result, the latter should be adopted.

Fraser, Crofoot, Wenstrand, Stryker & Marshall, Robert G. Fraser, Albert C. Walsh, Omaha, for appellant.

Matthews, Kelley & Delehant, Martin A. Cannon, Jr., Omaha, for appellee.

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

MESSMORE, Justice.

This is an action for damages brought in the district court for Douglas County by Mrs. Harry Maska, sometimes known as Phyllis Maska, plaintiff and appellee, for injuries sustained by her when she was riding as a guest in an automobile being driven by her husband which collided with an automobile being driven by Clyde C. Stoll, defendant and appellant. The case was tried to a jury, resulting in a verdict for the defendant. The plaintiff filed a motion for new trial which was sustained. From the order sustaining the motion for new trial, the defendant appealed.

The plaintiff's amended petition charged the defendant with negligence as follows: In failing to keep a proper lookout for other vehicles upon the road, and particularly the vehicle being driven by the plaintiff's husband; in failing to keep his automobile under proper control and to make use of the instrumentalities at hand to do so; in failing to yield the right-of-way to the automobile being driven by the plaintiff's husband; in driving at an unlawful and excessive rate of speed in view of the circumstances at said time, to wit: 35 miles an hour; and in failing to apply his brakes or do any other thing to avoid a collision.

The defendant's answer admitted that an accident happened and denied any negligence on his part. It further alleged that the sole and proximate cause of the collision was the gross negligence and want of care on the part of the driver and owner of the automobile in which the plaintiff was a passenger; and that if the plaintiff sustained any resultant damages or injuries, it was through no fault or negligence on the part of the defendant.

The accident occurred on Saturday, June 12, 1954, at or about 1:30 or 1:35 p. m., in the intersection of Hickory and Twenty-ninth Streets in Omaha. Hickory Street runs east and west and is paved with brick east of Twenty-ninth Street which runs north and south and is paved with asphalt. Hickory Street is about 24 feet wide east of Twenty-ninth Street and about 42 feet wide west of Twenty-ninth Street, and runs up a fairly steep grade to its intersection with Twenty-ninth Street. West of Twenty-ninth Street, Hickory Street is not quite as steep. Twenty-ninth Street is practically level, being slightly down grade to the south. The intersection of the two streets is level. At the time of the accident the weather was clear, the sun was shining, and the streets were dry.

For convenience we will refer to the plaintiff's driver as Maska and to his car as the Maska car; to the plaintiff as Phyllis; and to the defendant as Stoll and to his car as the Stoll car.

Maska testified that on June 12, 1954, he and his wife Phyllis and their small son were going to South Omaha. Maska was driving his 1952 Buick. His wife sat to his right and their son stood up between them. Maska was driving south on Twenty-ninth Street which intersects with Hickory Street in a residential district. There was a slight down grade to the south on Twenty-ninth Street. Hickory Street crosses Twenty-ninth Street at right angles. The grade on Hickory Street to the east and west is fairly steep. It comes up from the east into the intersection and then goes up to the west. There is a 'slow' sign facing north on Twenty-ninth Street. As Maska drove south on Twenty-ninth Street, his speed was 20 miles an hour, and he slowed down some as he approached the intersection. He noticed a car going east on Hickory Street, which was to the west of the intersection. This car parked halfway up the block, and Maska kept on going. He thought he could see almost to the next intersection west, but could not see too far to the east for the reason that it was down grade. He looked to the east, and as he approached the intersection there was nothing visible to him from the east. After he had entered the intersection, he saw Stoll's car about on the crosswalk on Hickory Street. Stoll's car was somewhere in the crosswalk that parallels Twenty-ninth Street on the east side of the intersection. Maska also testified that he did not have much time to do anything. Stoll's car was close enough that Maska knew he was going to be hit by it. He put his arm up in front of his son to hold him back, stepped on the brake, and there was a collision between his car and Stoll's car. The right front fender of the Stoll car struck the Maska car on the side, moved it a short distance, and it stopped in the intersection. Stoll's car glanced off the Maska car and proceeded east, then turned south on Twenty-ninth Street and struck a car that was parked up against the crosswalk that goes across Twenty-ninth Street on the south side of the intersection where it stopped. After the impact the Maska car had moved between 5 and 10 feet. Neither car left any skid marks. Maska talked to Stoll after the accident, and believed that Stoll told him that he saw Maska, but it was too late to avoid an accident. Phyllis got out of the car. She was injured, and was helped by persons residing in the immediate vicinity. Maska further testified that at the northeast corner of the intersection there was a hedge, 4 feet or a little higher, on the inside of the sidewalk. Hickory Street to the east of the intersection is considerably narrower than Twenty-ninth Street. Stoll did not reduce his speed at any time. Stoll's right front fender struck back of the left front wheel of the Maska car. The frame of the Maska car was bent just back of the front wheel. The steering assembly and knee action on the car were damaged, and the back fender was dented. Maska believed that the Stoll car had hit the front of his car and the back end of the Stoll car swerved against the back end of the Maska car. The hood of the Maska car flew off and lit upon the sidewalk. The Maska car was not driveable, and was towed away.

On cross-examination Maska testified that he lived on Park Avenue, the next street west of Twenty-ninth Street. He had been in Omaha for about 2 months. He had been over Twenty-ninth Street a few times and was rather familiar with it. There was not much traffic as he approached the intersection. When he was about 30 feet north of the crosswalk, he glanced to the right and saw a car pull up to the curb and stop. In a deposition taken before trial he testified that he was not sure he applied his brakes, that everything happened suddenly. He heard no sound of brakes being applied or of a horn or other signal. He did not honk his horn. He remembered telling the police that he was going 20 to 25 miles an hour, and was going the same speed at the time of the...