McCulley v. Anderson
| Decision Date | 08 November 1929 |
| Docket Number | 26791 |
| Parties | WILLIAM S. MCCULLEY, APPELLANT, v. ANDREW ANDERSON, APPELLEE |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Douglas county: JAMES M FITZGERALD, JUDGE. Reversed.
REVERSED.
Syllabus by the Court.
A motorist on a nonfavored street, having stopped as required by ordinance, and having looked to the right and left before entering an arterial highway and found the intersection clear of traffic, has a right, in proceeding to cross it, to assume that motorists on the arterial highway will likewise obey traffic regulations, exercise due care and, if necessary to prevent a collision, slacken their speed.
Where plaintiff in an action for negligence resulting in personal injuries makes a prima facie case without disclosing any negligence on his part, the burden is on defendant to prove that the proximate cause of the injuries was the negligence or contributory negligence of plaintiff, if that is the defense pleaded.
Contributory negligence as a defense must be proximate to plaintiff's injury in the same sense in which defendant's negligence must have been proximate to the injury giving rise to the cause of action.
Where plaintiff has made a prima facie case in an action for negligence resulting in personal injuries without disclosing any negligence on his part, the failure to instruct the jury that contributory negligence as a defense must have been the proximate or contributing cause of the injuries may be prejudicially erroneous even in absence of a request for such an instruction.
With the exception of a required stop at an arterial highway, the principles of law applicable to traffic thereon as to right of way privileges are the same as upon nonfavored streets, modified, however, by the conditions arising out of the stop requirement.
The right of a motorist on an arterial highway to assume that a motorcycle on a nonfavored intersecting street will be brought to a stop before entering the intersection does not permit him to exceed the speed limit or to disregard other traffic regulations or to claim the right of way when too far from the intersection to be entitled thereto.
An ordinance designating a street as an arterial highway and requiring motorists to stop before entering it from intersecting thoroughfares does not grant an exclusive privilege to drivers on the favored artery or require those crossing it to do so at their peril regardless of the duty of motorists on all highways to obey traffic regulations and to exercise due care to protect the rights and property of others.
Where a motorist on a nonfavored street stops at an intersecting arterial highway when the intersection is clear of traffic, looks to the right and left for approaching vehicles, acting as a reasonably prudent person in the exercise of due care would act in the belief that he has time and opportunity to safely cross, he is not liable for negligence merely because he attempts to do so.
In the trial of a cause of action arising from a collision of motor vehicles at the intersection of an arterial highway and a nonfavored street, where the issues of negligence and contributory negligence are involved, the jury should not be allowed to put their own interpretation on the ordinance designating the arterial highway and requiring motorists to stop before entering it, but should be instructed as to the relative or reciprocal rights and duties of motorists in entering and using the intersection.
In the trial of a cause before a jury, improper comments of the trial judge from the bench may be prejudicially erroneous where they tend to discredit a witness and his testimony.
Testimony tending to prove that a defendant was under the influence of liquor while operating an automobile in a public street may be given by a nonexpert witness.
Appeal from District Court, Douglas County; Fitzgerald, Judge.
Action by William S. McCulley, a minor, by his father and next friend, David E. McCulley, against Andrew Anderson. Judgment for defendant, and plaintiff appeals. Reversed, and remanded for new trial.
Shotwell & Ready, for appellant.
Wear, Moriarty, Garrotto & Boland, contra.
Heard before GOSS, C. J., ROSE, DEAN, GOOD, THOMPSON, EBERLY and DAY, JJ., and REDICK, District Judge.
This is an action to recover $ 40,000 in damages for personal injuries alleged to have been negligently inflicted by defendant while driving his automobile at an unlawful rate of speed into plaintiff's motor-cycle at the intersection of Forty-second and Leavenworth streets in Omaha--paved highways that cross each other at right angles. Leavenworth street between curbs is 40 feet wide and runs east and west. The width of Forty-second street between curbs is 25 feet and it runs north and south. Lengthwise on Leavenworth street there is a street car track on each side of the center. That street is a public thoroughfare designated by city ordinance as an "arterial highway" and drivers entering it from nonfavored cross streets are required, before doing so, to stop near the intersection at places indicated by stop signs.
The petition contains pleas that plaintiff, on a motor-cycle, approached Leavenworth street from the north on Forty-second street, came to a stop before entering it, observed it was free from traffic and carefully proceeded south on the right side of Forty-second street until his motor-cycle passed over the first street car track beyond the center of the intersection, when defendant, driving an automobile westward on the wrong side of Leavenworth street at an unlawful and dangerous speed collided with plaintiff, thus permanently injuring him and demolishing his motor-cycle.
In the answer to the petition defendant alleged the collision was not due to any negligence on his part. The answer also contained the defense that plaintiff's injuries and damages, if any, were "due entirely to his own gross negligence, carelessness and recklessness which caused and directly contributed" to the accident.
The reply contained a denial of unadmitted facts pleaded in the answer.
From judgment on a verdict in favor of defendant, plaintiff has appealed.
The failure of the trial court to instruct the jury that negligence of plaintiff, if any, would not prevent a verdict in his favor unless it contributed to or caused the collision is assigned as error and presented on appeal as a ground for reversal. The principle of law invoked was stated in a former opinion as follows:
"The plaintiff's negligence will not defeat a recovery unless it was the sole cause of the plaintiff's injury, or concurred or co-operated with the defendant's negligence as a proximate cause of the accident." McGahey v. Citizens R. Co., 88 Neb. 218, 129 N.W. 293.
The trial court did not give an instruction on this feature of the case. Was the omission erroneous? The solution of the question requires an examination of the evidence. Eye-witnesses called by plaintiff testified positively that he stopped on Forty-second street at the place indicated by the stop sign and started directly south across the west side of the intersection when clear of traffic and when defendant was east of it on Leavenworth street; that plaintiff, after stopping, was first to enter the intersection, but did not proceed faster than five miles an hour; that he went south on the west side of Forty-second street; that defendant was east of Forty-second street when plaintiff entered the intersection. One witness testified in substance that she was driving west on Leavenworth street at the rate of 25 miles an hour; that defendant drove up behind her when she was nearing the intersection at Forty-second street, turned south to pass her, touched the fender of her automobile while going 35 or 40 miles an hour, went south of the center of Leavenworth street, turned north in front of her, zigzagged and ran into plaintiff's motor-cycle west of the intersection near the center of it; that she stopped her car and accosted defendant where his car stopped perhaps 60 feet from the point of impact, noticed the odor of liquor on his breath, and told him the accident would not have happened if he had not been drinking. She said he admitted going too fast and she expressed the opinion that he was under the influence of liquor. The estimates of all eye-witnesses except defendant himself indicate that he exceeded a speed of 20 miles an hour in the intersection and some were of the opinion that his speed was as high as 35 or 40 miles an hour. There is evidence tending to show that defendant violated an ordinance forbidding him from driving an automobile while under the influence of liquor; an ordinance limiting speed to 20 miles an hour in the intersection; an ordinance against driving on the wrong side of the street; a law requiring the driver of a motor vehicle in a public street to exercise reasonable care to protect the rights of others in the lawful use of the same street. The evidence is clear that defendant's automobile, after the impact, ran toward the southwest, struck the curb on the south side of Leavenworth street west of Forty-second street, smashed a wheel when it struck the curb and stopped at a brick pillar approximately 60 feet from the point of collision. The violence of the impact and the distance the automobile traveled before coming to rest at the pillar tend to prove excessive speed. Plaintiff was thrown a considerable distance and fell on the pavement southwest of the center of the intersection. The circumstances generally tend to strengthen the testimony of plaintiff's eye-witnesses and...
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McCulley v. Anderson
...119 Neb. 105227 N.W. 321MCCULLEYv.ANDERSON.No. 26791.Supreme Court of Nebraska.Nov. 8, [227 N.W. 321]Syllabus by the Court. A motorist on a nonfavored street, having stopped as required by ordinance, and having looked to the right and left before entering an arterial highway and found the i......