Miller v. Aitken, 33671

• Decision Date: 11 March 1955
• Docket Number: No. 33671,33671
• Citation: 160 Neb. 97,69 N.W.2d 290
• Parties: William R. MILLER, Appellant, v. John W. AITKEN and Courtney M. Aitken, Appellees.
• Court: Nebraska Supreme Court

Page 290

69 N.W.2d 290

160 Neb. 97

William R. MILLER, Appellant, v. John W. AITKEN and Courtney M. Aitken, Appellees.

No. 33671.

Supreme Court of Nebraska.

March 11, 1955.

Syllabus by the Court.

1. In order to obtain a summary judgment the movant must show, first, that there is no genuine issue as to any material fact in the case, and second, that he is entitled to a judgment as a matter of law.

2. In considering such motion the court should consider the evidence in the light most favorable to the party against whom it is directed.

3. Summary judgment is effective and serves a separate useful purpose only when it can be used to pierce the allegations of the pleadings and show conclusively that the controlling facts are otherwise than as alleged.

4. Where the undisputed facts conclusively establish in an action for negligence that plaintiff was guilty of contributory negligence more than slight when compared with the negligence of the defendant as a matter of law, a motion for summary judgment for the defendant may properly be sustained.

Sackett, Brewster & Sackett, Beatrice, Robert S. Finn, Tecumseh, for appellant.

Jean B. Cain, Falls City, Raymond B. Morrissey, Tecumseh, for appellees.

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

CARTER, Justice.

This is an action for personal injuries and property damage sustained by the plaintiff resulting from the alleged negligence of defendants, arising out of an automobile accident. A motion by the defendants for a summary judgment was sustained by the trial court and the plaintiff appeals.

The evidence in support of the motion consists of the deposition of the plaintiff and an affidavit of the defendant John W. Aitken with a photograph of each of the two automobiles involved taken after the accident.

Plaintiff's petition alleged that he was driving north on a graded dirt road about 1 mile east and 5 miles south of Sterling, Nebraska, on September 2, 1953, at or about 6:30 p. m. It alleged that plaintiff approached the intersection from the south in a careful and prudent manner, and at a reasonable speed which did not exceed 25 to 30 miles per hour. Defendant John W. Aitken approached the intersection from the east and it is alleged that he negligently drove his automobile into the intersection while it was lawfully occupied by plaintiff's car, causing the personal injuries and property damage here complained of. It is alleged also that trees, bushes, and weeds obscured the vision of plaintiff to the east and that of the defendant John Aitken to the south. It is alleged further that plaintiff slowed his automobile down to 20 or 25 miles per hour, and after looking to the east and west he proceeded into the intersection where he was hit by defendants' car being carelessly, negligently, and unlawfully driven at a dangerous rate of speed in excess of 60 miles per hour. The petition alleges that defendant John W Aitken failed to keep a proper lookout, that he drove at excessive speed, that he failed to yield the right-of-way, that he failed to apply his brakes, and that he failed to drive at such a rate of speed as to avoid hitting plaintiff's car in the intersection.

Defendant John W. Aitken alleges in his answer that as he approached from the east he had the right-of-way, that he was traveling on the right-hand side of the road, and that plaintiff carelessly and recklessly drove his automobile into the intersection and struck the car driven by the defendant John Aitken.

Plaintiff alleges in his reply that defendants' car did not enter the intersection prior to the time plaintiff's car proceeded into it and reasserts the negligence of the defendant John W. Aitken as the proximate cause of the accident.

Defendants thereafter took the deposition of the plaintiff and, on the basis of the evidence contained therein, moved for a summary judgment. Defendants also offered the affidavit of John W. Aitken to which was attached two photographs. One was a picture of plaintiff's car showing that it was damaged at the front. The other picture shows that defendants' car was hit in the area of the left rear wheel.

The uncontradicted evidence offered in support of the motion for a summary judgment is as follows: The plaintiff says in his deposition that he approached the intersection from the south at a speed of 35 or 40 miles per hour. He slowed down for the intersection, to a speed of about 30 miles per hour. He had traveled the road many times and knew the intersection was dangerous. His vision to the east was obscured by trees, a hedge, and growing weeds. He could not see anyone approaching from his rigith until he was north of the south line of the intersection. He says that his view from the right was absolutely obscured. He states that he looked both east and west, but that he saw no car approaching from the east because of the trees, hedge, and growing weeds. He gave no signal as he entered the intersection and specifically states that he did not sound his horn. He did not apply his brakes because he did not have time. He did not see the Aitken car until he was across the center of the intersection. The collision...