Napier v. Pedersen

• Decision Date: 04 October 1963
• Docket Number: No. 35415,35415
• Citation: 123 N.W.2d 577,175 Neb. 703
• Parties: Vicki NAPIER, Appellant, v. Alfred PEDERSEN, Appellee.
• Court: Nebraska Supreme Court

Page 577

123 N.W.2d 577

175 Neb. 703

Vicki NAPIER, Appellant, v. Alfred PEDERSEN, Appellee.

No. 35415.

Supreme Court of Nebraska.

Oct. 4, 1963.

Syllabus by the Court

1. In determining whether a party is entitled to a directed verdict, the evidence must be considered most favorably to the other party, every controverted fact must be resolved in his favor, and he is entitled to the benefit of every reasonable inference that may be drawn therefrom.

2. Where different minds may draw different conclusions from the evidence in regard to negligence, the question should be submitted to the jury.

3. Where the negligence of the driver of the automobile in which a guest is riding is the sole proximate cause of injuries to the guest, then the guest has no right of recovery as against a third person.

Schrempp, Lathrop & Rosenthal, Omaha, for appellant.

Cassem, Tierney, Adams & Henatsch, Omaha, for appellee.

Heard before WHITE, C. J., and CARTER, MESSMORE, YEAGER, SPENCER, BOSLAUGH, and BROWER, JJ.

BOSLAUGH, Justice.

This is an action for damages brought by Vicki Napier, plaintiff, against Alfred Pedersen, defendant. The plaintiff was a passenger in an automobile operated by Mary K. Campbell and was injured when the Campbell automobile was involved in an accident with the defendant's automobile at an intersection.

At the close of all the evidence, the plaintiff moved for a directed verdict on the issue of the defendant's liability. The trial court overruled the motion and submitted the issue of the defendant's negligence and the issue of proximate cause of the jury. The jury returned a verdict for the defendant. The plaintiff's motion for new trial was overruled and she has appealed.

The plaintiff assigns as error the failure of the trial court to direct a verdict for the plaintiff on the issue of the defendant's liability.

The accident happened in Omaha, Nebraska, at about 9 a. m. on November 12, 1960. Mrs. Campbell was driving north on Fiftieth Avenue and the defendant was driving east on Izard Street. The speed limit on both streets is 25 miles per hour. There are no stop signs at the intersection. The accident occurred when the front of the defendant's automobile collided with the left rear of the Campbell automobile in the intersection. After the impact, the Campbell automobile struck a large tree approximately 65 feet north and west of the point of impact. The plaintiff was injured when the Campbell automobile collided with the tree.

Much of the evidence as to how the accident happened is in conflict. In determining whether the plaintiff was entitled to a directed verdict on the issue of the defendant's liability, the evidence must be considered most favorably to the defendant, every controverted fact must be resolved in his favor, and he is entitled to the benefit of every reasonable inference which may be drawn therefrom.

The defendant testified that he decreased his speed as he approached the intersection and looked to the south when he was about one car length west of the intersection; that he saw no traffic approaching the intersection; that he looked to the south again when he was near the crosswalk, or west curbline of the intersection, and saw the Campbell automobile; and that the Campbell automobile was then 30 to 35 feet south of the intersection. The defendant testified that his speed at that time was 10 miles per hour and he estimated the speed of the Campbell automobile to be 30 to 35 miles per hour; that he further reduced his speed and turned slightly to the left;...