Murray v. Pearson Appliance Store

• Decision Date: 20 June 1952
• Docket Number: No. 33012,33012
• Citation: 155 Neb. 860,54 N.W.2d 250
• Parties: MURRAY v. PEARSON APPLIANCE STORE et al.
• Court: Nebraska Supreme Court

Page 250

54 N.W.2d 250

155 Neb. 860

MURRAY v. PEARSON APPLIANCE STORE et al.

No. 33012.

Supreme Court of Nebraska.

June 20, 1952.

Syllabus by the Court.

1. Users of the highway are required to exercise reasonable care. What is reasonable care must, in each case, be determined by its own peculiar facts and circumstances.

2. The existence or presence of smoke, snow, fog, mist, blinding headlights, or other similar elements which materially impair or wholly destroy visibility are not to be deemed intervening causes but rather as conditions which impose upon the drivers of automobiles the duty to assure the safety of the public by the exercise of a degree of care commensurate with such surrounding circumstances.

3. Negligence is the omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do.

4. The driver of a motor vehicle has the duty to keep a proper lookout and watch where he is driving even though he is rightfully on the highway and has the right-of-way or is driving on the side of the highway where he has a lawful right to be. He must keep a lookout ahead or in the direction of travel or in the direction from which others may be expected to approach and is bound to take notice of the road, to observe conditions along the way, and to know what is in front of him for a reasonable distance.

5. As a general rule it is negligence as a matter of law for a motorist to drive an automobile on a highway in such a manner that he cannot stop in time to avoid a collision with an object within the range of his vision.

6. Contributory negligence is conduct for which plaintiff is responsible, amounting to a breach of the duty which the law imposes upon persons to protect themselves from injury, and which, concurring and cooperating with actionable negligence for which defendant is responsible, contributes to the injury complained of as a proximate cause.

7. The proximate cause of an injury is that cause which, in the natural and continuous sequence, unaccompanied by any efficient intervening cause, produces the injury, and without which the result would not have occurred.

8. Where there are elements of damage, such as expenditures, capable of pecuniary measurement, the law requires the amount shall be proved.

9. If the defendant pleads that the plaintiff was guilty of contributory negligence the burden is upon him to prove that defense and this burden does not shift during the trial of the case. However, if the evidence adduced by the plaintiff tends to prove that issue the defendant is entitled to receive the benefit thereof and the court must instruct the jury to that effect.

10. Under the comparative negligence law, section 25-1151, R.R.S.1943, the words 'slight' and 'gross' as therein used are comparative terms and the intent of the statute is that the negligence of the parties will be compared one with the other in determining questions of slight and gross negligence.

Maupin & Dent, North Platte, for appellants.

V. H. Halligan, North Platte, for appellee.

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

WENKE, Justice.

Elwin Murray, a minor, by Louis Murray, his father and natural guardian and next friend, brought this action in the district court for Lincoln County against Pearson Appliance Store, Herbert R. Pearson, and Rollo Harvey. The purpose of the action is to recover for personal injuries and property damage suffered in a truck-car accident. The basis for recovery is that defendant Harvey was negligent in operating a truck owned by defendant Pearson, who is doing business under the trade name of Pearson Appliance Store, and that such negligence was the proximate cause of the accident which resulted in plaintiff's damages. By the time the action was tried the plaintiff had reached maturity and the case proceeded to trial in his name. The jury returned a verdict for the plaintiff on both counts. An alternative motion for either a judgment notwithstanding a verdict or for a new trial was filed and overruled and judgment entered on the verdict. The defendants appeal therefrom.

Appellants contend their motion for a judgment notwithstanding the verdict should have been sustained for the reason that appellee's evidence shows he was guilty of contributory negligence which was more than slight and sufficient, as a matter of law, to defeat his right to recover.

In this respect we have said: 'When the court can say, as a matter of law, that the plaintiff is guilty of negligence that is more than slight as compared with that of the defendant and that such negligence is a proximate cause of the accident then the court should direct a verdict for the defendant and dismiss the action.' Buresh v. George, 149 Neb. 340, 31 N.W.2d 106.

The evidence is not in dispute as to the following:

Appellant Pearson operated a store in Wallace, Nebraska, under the trade name of Pearson Appliance Store. While this business was primarily engaged in selling electrical appliances and machines it also sold propane gas. For the purpose of delivering this latter product Pearson owned and operated a two-ton Studebaker truck with a bulk propane gas tank. Pearson had in his employ the appellant Harvey and Wilbur Owens. They operated the store in Wallace.

Appellee, Elwin Murray, lived in Wallace and was engaged in farming and ranching with his father. Their operations were located some three miles east and one-half mile south of Wallace and their livestock consisted of some 45 head of cattle. Appellee was in sole charge of this livestock at the time of the accident as his father was at that time in California. There was no one staying at the place where these cattle were being kept. The cattle consisted mostly of stock cows but did include a few milk cows. Appellee owned a 1947 Studebaker five-passenger coupe which he used in going to and from the place where the cattle were kept.

Dickens, Nebraska, is some nine or ten miles east of Wallace and located on Highway No. 23, which is a graded and graveled road. About 9 p. m. on Sunday evening, January 2, 1949, snow began to fall at Wallace. By Monday morning it had become a blizzard. Early that morning, about 2 a. m., a customer near Dickens called the Pearson Appliance Store and asked them to deliver some propane gas. This Harvey and Owens attempted to do. They used the Studebaker truck for this purpose and put chains on the rear dual wheels before starting. When loaded this truck weighs between six and seven tons. They left Wallace about 8 a. m. but after getting within about three miles of Dickens the weather conditions caused them to turn around and return to Wallace. The wind was blowing from the northeast. On their return, at a point about one-half mile south and one and one-half miles east of Wallace on Highway No. 23, just as the truck was coming out of a snowdrift which was across the highway, the truck collided with appellee's coupe. The accident happened about the middle of the forenoon.

Appellee, on Monday morning, because of the weather conditions, decided to go out and look after the livestock he and his father owned. He used his car for that purpose. He first went south one-half mile and then turned east on Highway No. 23. After he had gone east about a mile and a half his coupe collided with the Pearson truck, the left-front wheel and fender of the car striking the left-front wheel and fender of the truck. After the collision the car was standing upright, but at an angle, on the south edge of the highway. It was partly in the ditch. Its left-front wheel was on the graded and graveled surface, its right-front wheel was off the graded and graveled surface, but on the shoulder, and its rear wheels were in the ditch. At this point the slope of the shoulder into the ditch is very gradual.

Appellee testified that he was driving his coupe without chains; that he was familiar with the road, having driven it many times; that while driving south out of Wallace for a distance of a half mile he had some visibility; that after turning east on Highway No. 23 his visibility was zero; that he could not see ahead; that he put his car in low and drove about five miles an hour; that, in order to be able to proceed, he rolled down the glass in the right door of his coupe, sat on the right side of the front seat which was wide enough for three people, and put his head out of the opening in the door and looked down to see the edge of the gravel; that he guided the car by aligning it with the edge thereof, keeping it about a foot and a half therefrom; that some 100 to 150 yards from the place of the accident there was some snow drifted across the road; that just before the accident he heard his tries starting to creak like they might be rolling into a snowdrift; that he thereupon pulled his head into the car and started to put on the brakes; that the impact occurred; that the impact occurred after he had traveled east about a mile and a half; that at the place of impact the road was straight and level; that he never saw the truck before the impact; that his head went through the right front of his windshield; that his car was at all times on the right side of the center of the graveled and graded portion of the road; that after the impact the truck was right in front of him; and that before it could go forward it had to back up a little to get around the front end of his car.

Appellant Harvey, who was driving the truck, and his fellow employee Owens, who was riding with him, testified that after they turned around to return to Wallace they had some visibility as they were traveling with the storm; that as they approached a point just east of where the accident occurred they came to snow that was drifted across the highway; that this snow had drifted as deep as two and one-half feet; that...