Merritt v. Reed

• Decision Date: 19 March 1971
• Docket Number: No. 37521,37521
• Citation: 185 N.W.2d 261,186 Neb. 561
• Parties: Elvina M. MERRITT, Administratrix of the Estate of Ferdinand M. Merritt, Deceased, Appellant, v. Dwight REED, doing business as Reed Hardware, Chadron, Nebraska and Keith Lenington, Appellees.
• Court: Nebraska Supreme Court

Page 261

185 N.W.2d 261

186 Neb. 561

Elvina M. MERRITT, Administratrix of the Estate of Ferdinand M. Merritt, Deceased, Appellant, v. Dwight REED, doing business as Reed Hardware, Chadron, Nebraska and Keith Lenington, Appellees.

No. 37521.

Supreme Court of Nebraska.

March 19, 1971.

Syllabus by the Court

1. A pedestrian who crosses a street between intersections is required to keep a constant lookout for his own safety in all directions of anticipated danger.

2. Where both parties are deceased, are disabled, or lack memory, creating offsetting presumptions of due care, the resolution must rest upon the proper inferences to be drawn from whatever circumstantial evidence is available to the trier of fact.

3. To justify this court in interfering with the findings of a jury on a fact question, the preponderance of the evidence must be so clearly and obviously contrary to the findings that it is the duty of the reviewing court to correct the mistake.

4. The persuasiveness of direct evidence may be destroyed by the physical facts or other circumstantial evidence, even though not contradicted by direct evidence.

5. A pedestrian who crosses a street between intersections is charged with the exercise of a greater degree of care than one who crosses a street at a crosswalk where protection is afforded by giving the pedestrian the right-of-way.

6. One who attempts to cross a street between intersections without looking is guilty of such negligence as would bar a recovery as a matter of law.

7. The duty to sound a signal or horn depends upon the circumstances of the particular case.

Charles A. Fisher, Chadron, for appellant.

Van Steenberg, Winner & Wood, Scottsbluff, Crites & Shaffer, Chadron, for appellees.

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

WHITE, Chief Justice.

The deceased husband of the plaintiff, a pedestrian, was killed by a collision with a pick-up truck, owned by defendant Reed and being driven by defendant Lenington, while deceased was crossing Bordeaux Street between intersections in the downtown business district of Chadron, Nebraska. The district court submitted the case to the jury on issues of negligence and contributory negligence and the jury returned a verdict for the defendants. Judgment of the district court was entered accordingly. We affirm the judgment of the district court.

The plaintiff assigns 27 overlapping errors, many of which are not discussed and therefore will not be considered. They boil down to an assertion that the district court erred in the submission of the issue of contributory negligence and in the failure to submit other specifications of negligence on the part of the defendant Lenington, beyond that of speed.

Third Street (U.S. Highway No. 20) is a main arterial road running east and west through Chadron, Nebraska. It is intersected by Bordeaux Street, running north and south, which is a paved street about 40 feet wide, in the downtown business section of the City of Chadron. There is a service or filling station on each of the northwest and northeast corners of Third and Bordeaux Streets. There is another filling station on the north side of Third Street a block east of Bordeaux Street. The accident occurred around 9 a.m. on November 8, 1967. The day was clear, the pavement was dry, and the evidence is conclusive that the vision north and south on Bordeaux Street was unobstructed. The pick-up truck approached from the south on Bordeaux Street, crossed the intersection of Third and Bordeaux Streets, and continued north.

The undisputed physical facts and the measurements made by the sheriff establish that the deceased was struck somewhere around 52 feet north of the north crosswalk of Third and Bordeaux Streets and near the center of Bordeaux Street. By judicial admission the plaintiff admits that it happened 35 to 42 feet north of the north crosswalk. This is corroborated by testimony as to the location of debris surrounding the location of the deceased's body. The deceased's body was carried or hurled a distance off the street after impact to a point approximately opposite the Elks Club entrance on the west side of Bordeaux Street further north. The hat he was wearing was found approximately in the middle of the Bordeaux Street, 52 feet north of the crosswalk. The one witness who observed the hat immediately after the thud of impact testified that the deceased's hat flew up in the air, and the inference is that it came to rest some place south of the actual point of impact. This would place the point of impact somewhat north of where the hat was found. There were no eyewitnesses to the accident. The deceased never regained consciousness and was dead on arrival at the hospital. The defendant has no memory of the circumstances of the accident which, while unusual, is not uncommon in major accidents. See, 11 Blashfield, Automobile Law and Practice, s. 417.2, p. 144, and cases cited thereunder. In light of this situation the resolution of this case must rest upon a proper analysis of the almost undisputed circumstantial evidence in the case, and its relation to the requisite burdens of proof and presumptions involved. Both parties seem to rely upon the presumptions applicable to these situations. However, we are not aided by any presumptions involved here as the same presumption of due care as is presumed for a deceased prevails where the party's version is unavailable due to disability or loss of memory. Where both parties are deceased, are disabled, or lack memory, creating offsetting presumptions of due care, the resolution must rest upon the proper inferences to be drawn from whatever circumstantial evidence is available to the trier of fact. 11 Blashfield, Automobile Law and Practice, s. 417.2, p. 144.

At the outset, since we are asked to overturn the jury verdict for defendants, we must consider this case in light of the rule that to justify this court in interfering with the findings of a jury on a fact question, the preponderance of the evidence must be so clearly and obviously contrary to the findings that it is the duty of the reviewing court to correct the mistake. Schmeeckle v. Peterson, 178 Neb. 476, 134 N.W.2d 37; Beavers v. Christensen, 176 Neb. 162, 125 N.W.2d 551; Bentley v. Hoagland, 94 Neb. 442, 143 N.W. 465; Fried v. Remington, 6 Neb. 525. In approaching the analysis of the evidence with relation to the sufficiency or lack of evidence in this case, when there is no direct evidence from the lips of the parties involved, we are not required to accept as absolute verity every statement of a witness not contradicted by direct evidence. The persuasiveness of the evidence is destroyed by the physical facts or other circumstantial evidence, even though not contradicted by direct evidence. Snowardt v. City of Kimball, 174 Neb. 294, 117 N.W.2d 543; Beavers v. Christensen, Supra; Trumbley v. Moore, 151 Neb. 780, 39 N.W.2d 613.

The record demonstrates conclusively that the deceased, a pedestrian, was crossing a downtown business street between intersections. The pick-up truck approached on Bordeaux Street from the south on a clear, dry day with the view to the south completely unobscured. The defendant driver had the right-of-way. Section 39--751 (5), R.R.S.1943; Carman v. Hartnett, 161 Neb. 576, 74 N.W.2d 352; Jarosh v. Van Meter, 171 Neb. 61, 105 N.W.2d 531, 82 A.L.R.2d 714; Trumbley v. Moore, Supra.

This court has been faced in the past with a quite similar situation in Trumbley v. Moore, Supra. In that case the court was faced with a situation where the plaintiff was an eyewitness and attempted to supply the testimony which would defeat the application of the traditional rules as to right-of-way and lookout and the duty of the pedestrian in this situation. The analysis the court made in that case is obviously applicable to the case at bar. This court said: 'But one who does so (cross between intersections) is charged with the exercise of a greater degree of care than one who crosses a street at a crosswalk where protection is afforded by giving the pedestrian the right-of-way. Doan v. Hoppe, 133 Neb. 767, 277 N.W. 64. While one who crosses a street between Intersections in direct violation of a statute or ordinance is guilty of negligence in so doing, it does not necessarily follow that it is such negligence as would bar a recovery as a matter of law because it might still be for the jury to determine the extent that his negligence contributed to his injury or whether the driver of the car should have seen him in time to avoid the accident. But one who crosses a street between intersections is required to Keep a constant lookout for his own safety in all directions of anticipated danger. Where such person crosses the street between intersections without looking at all, or looks straight ahead without glancing to either side, or is in a position where he cannot see and proceeds irrespective of that fact, the situation usually presents a question for the court. Where he looks but does not see an approaching automobile, or sees it and misjudges its speed or its distance from him, or for some other reason concludes that he could avoid injury to himself, a jury question is usually presented. But the foregoing rule does not mean that a mere statement by the injured person, that he looked in the direction from which he was struck is sufficient of itself to insure a consideration of his case by a jury. It must be sufficiently consistent with the circumstances and facts shown by the evidence to present a question of fact for the jury to decide.

'It is elementary that one who attempts to cross a street between intersections without looking is guilty of such negligence as would bar a recovery as a matter of law. If he testifies that he did look, it is implied that he looked in such a manner that he would see that which was in plain sight, unless some reasonable excuse for not seeing is shown. The...