McCall v. Weeks

• Decision Date: 24 January 1969
• Docket Number: No. 36853,36853
• Parties: Frances McCALL, Executrix of the Estate of James D. McCall, Deceased, Appellee, v. Ellen J. WEEKS and David Weeks, Appellants.
• Court: Nebraska Supreme Court

Page 206

164 N.W.2d 206

183 Neb. 743

Frances McCALL, Executrix of the Estate of James D. McCall, Deceased, Appellee, v. Ellen J. WEEKS and David Weeks, Appellants.

No. 36853.

Supreme Court of Nebraska.

Jan. 24, 1969.

Syllabus by the Court.

1. When automobiles collide in the center of an ordinary intersection of highways and there is no evidence of substantial difference in speeds of the vehicles, it is generally self-evident that they approached the intersection at approximately the same time, and under the rule that when two vehicles approach an intersection at approximately the same time, the driver on the left must yield the right-of-way to the vehicle on the right and which is traveling at a lawful rate of speed.

2. A driver entering an intersection of two highways is obligated to look for approaching vehicles and to see any vehicle within the radius which denotes the limit of danger, and a driver who enters an intersection and looks for approaching vehicles but fails to see one which is favored over him under the rules of the road is guilty of negligence.

3. Contributory negligence means any negligence of the plaintiff directly and proximately contributing to the cause of the accident.

4. The right of a person suffering from a disease, who is injured by the reason of the negligence of another, to recover for all damages proximately resulting from the negligent act includes the right to recover for the aggravation of the preexisting disease.

Wagoner & Grimminger, Grand Island, for appellants.

John R. Sullivan, Ord, John E. Dougherty, York, for appellee.

Heard before WHITE, C.J., and CARTER, SPENCER, BOSLAUGH, SMITH, McCOWN and NEWTON, JJ.

WHITE, Chief Justice.

This is an appeal from a jury verdict and judgment for $18,000 in a personal injury automobile accident occurring at an open country intersection. We affirm the judgment.

The accident occurred at about 10:30 a.m. on August 25, 1964, a clear, dry day at an open intersection south of Ord, Nebraska. Ellen J. Weeks, hereinafter called defendant, was proceeding north and the plaintiff's decedent was driving west. Plaintiff's decedent had the directional right-of-way. The accident occurred at almost the exact center of the intersection and the front end of defendant's car collided with the left center of the automobile of plaintiff's decedent. There is evidence in the record that the defendant was traveling 35 to 40 miles per hour; that the view up to the fence lines on the southeast corner of the intersection were obstructed by trees and grass and weeds; and that the defendant did not observe the automobile of plaintiff's decedent until she was within two car lengths distance from it. The automobile of plaintiff's decedent traveled about 30 feet from the point of impact and wound up against an R.E.A. pole in the vicinity of a ditch on the northwest corner. The defendant's automobile traveled slightly to the left or west and forward to the north about 15 feet.

The defendant attacks the giving of instruction No. 1 in which the court submitted the following allegations of negligence on the part of the defendant, Ellen J. Weeks: '(a) That defendant failed and neglected to keep and maintain a proper and sufficient lookout; * * * (c) That defendant failed, refused and neglected to give, grant and accord the plaintiff's machine the righ-of-way * * *: (d) That defendant operated their automobile at a high, careless, reckless and negligent rate of speed, to-wit: at 35 to 40 miles an hour and at such a rate of speed that they could not stop, turn aside and avoid an accident; (e) That defendants failed to reduce speed when entering and crossing on intersections of highways.' The above instruction submits the usual issues in open intersection cases. The evidence is that the defendant failed to see the decedent's automobile until she was two car lengths away from it and after she must have been in the intersection. Her own testimony as to a speed of 35 to 40 miles an hour as she entered the intersection and up to the point where she was two car lengths away is obviously sufficient to submit the issues of reasonable speed under the circumstances (subdivision d) and the failure to reduce speed when entering an intersection (subdivision e). As to subdivision (c) relating to right-of-way, the defendant herself testified and the evidence in this case leaves no other conclusion than that both automobiles reached the intersection at approximately the same time. As we have stated many times, when automobiles collide in the center of an ordinary intersection of highways and there is no evidence of substantial difference in speeds of the vehicles, it is generally self-evident that they approached the intersection at approximately the same time and under the rule that when two vehicles approach an intersection at approximately the same time, the driver on the left must yield the right-of-way to the vehicle on the right and which is traveling at a lawful rate of speed. See, Long v. Whalen, 160 Neb. 813, 71 N.W.2d 496; Cappel v. Riener, 167 Neb. 375, 93 N.W.2d 36. As to subdivision (a), the evidence clearly sustains the question on lookout, probably the basic instruction in any open intersection case. A driver entering an intersection of two highways is obligated to look for approaching vehicles and to see any vehicle within the radius which denotes the limit of danger, and a driver who enters an intersection and looks for approaching vehicles but fails to see one which is favored over him under the rules of the road is guilty of negligence. Wolstenholm v. Kaliff, 176 Neb. 358, 126 N.W.2d 178; Colton v. Benes, 176 Neb. 483, 126 N.W.2d 652; Mills v. Bauer, 180 Neb. 411, 143 N.W.2d 270.

The defendant complains of instruction No. 4 which submitted the issue of contributory negligence of the deceased. It is not necessary to reach that issue. The defendant's own version of the accident was that the decedent reached the intersection ahead of her; that he was on the right; and that she collided with the center of decedent's vehicle. There is no evidence that the automobile of decedent was traveling at an excessive or unreasonable rate of speed. The most that could be elicited from the defendant in her testimony on this point was that sher saw the profile of the deceased just before the collision occurred. She gave no estimate of his speed. Consequently, there being no evidence of contributory negligence, there could be no prejudicial error in the giving of the instruction; however, we have also examined instruction No. 4 and when considered in conjunction with instruction No. 25 on comparative negligence, we come to the conclusion that there was no error in the instruction as given. Instructions should not be considered out of context and must always be...