Nisi v. Checker Cab Co.

• Citation: 105 N.W.2d 523,171 Neb. 49
• Decision Date: 21 October 1960
• Docket Number: No. 34774,34774
• Parties: Ross NISI and Mary Nisi Palmesano, Administrator and Administratrix of the Estate of Martha Nisi, a/k/a Mattia Nisi, Deceased, Appellees, v. CHECKER CAB CO., a corporation, Appellant.
• Court: Supreme Court of Nebraska

Page 523

105 N.W.2d 523

171 Neb. 49

Ross NISI and Mary Nisi Palmesano, Administrator and Administratrix of the Estate of Martha Nisi, a/k/a Mattia Nisi, Deceased, Appellees, v. CHECKER CAB CO., a corporation, Appellant.

No. 34774.

Supreme Court of Nebraska.

Oct. 21, 1960.

Syllabus by the Court

1. A motion for a directed verdict must for the purpose of decision thereon be treated as an admission of the truth of all material and relevant evidence submitted on behalf of the party against whom the motion is directed. Such party is entitled to have every controverted fact resolved in his favor, and to have the benefit of every inference that can reasonably be deduced from the evidence.

2. It is not the province of this court in reviewing the record in an action at law to resolve conflicts in or weigh the evidence.

3. It is presumed in such an action that controverted facts were decided by the jury in favor of the successful party, and its finding based on conflicting evidence will not be disturbed unless clearly wrong.

4. A qualified expert, upon laying a proper foundation, may give his opinion as to the speed of an automobile, based on the length of skid marks made by it when brakes were applied.

5. Various factors, such as skid marks, distance traveled after impact, and force of impact, constitute pertinent evidence in arriving at an estimate of the rate of speed of an automobile, either by those involved in an accident or those in authority investigating the accident immediately thereafter.

6. Proof of violation of a statute or city ordinance relating to speed does not of itself establish negligence in an action for damages but it is evidence which is to be considered in determining whether a party is guilty of negligence.

7. In the absence of a prohibition by statute or ordinance a person may cross a street at any place and is not limited to crossings at intersections. The driver of an automobile owes to one crossing a street at a point not a regular crossing the duty of reasonable and ordinary care under the circumstances.

8. The operator of an automobile equipped with headlights as required by statute, who does not observe a pedestrian until just before striking him, is not conclusively guilty of negligence. Under such circumstances it is clearly a question for the jury. The question whether the defendant should have seen the deceased, and the inferences to be drawn from the evidence adduced, are matters of evidence which a jury must decide.

9. In those cases where reasonable minds may differ on the question of whether or not the operator of an automobile exercised the care, caution, and prudence required of him under the circumstances of the particular situation the issue of negligence on the part of the operator is one of fact to be determined by a jury.

Gross, Welch, Vinardi, Kauffman & Schatz, Omaha, for appellant.

Albert Lustgarten, Henry C. Rosenthal, Schrempp & Lathrop, Omaha, for appellees.

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

MESSMORE, Justice.

This is an action at law brought in the district court for Douglas County by Ross Nisi and Mary Nisi Palmesano, administrator and administratrix of the estate of Martha Nisi, also known as Mattia Nisi, deceased, against the Checker Cab Company, a corporation, defendant, to recover damages for the wrongful death of plaintiffs' decedent caused by the negligence of a driver of one of defendant's taxicabs. The jury returned a verdict in favor of plaintiffs and against the defendant, assessing the amount of recovery for plaintiffs in the sum of $8,868.15. The defendant filed a motion to set aside the verdict and for judgment in accordance with its motion for directed verdict at the conclusion of the plaintiffs' evidence and at the conclusion of all of the evidence. This motion was overruled. From the overruling of defendant's motion, the defendant perfected appeal to this court.

The plaintiffs' petition, insofar as it need be considered here, alleged in substance that on or about May 30, 1958, at about 9:20 p. m., Martha Nisi was proceeding from the west to the east side of the street in front of or to the east of the premises described as 1234 South Tenth Street in the city of Omaha; that as she reached a point at about the center of the street she was then and there struck by a northbound Checker cab operated by the driver, Stanley W. Hartwell, in the course and scope of his employment with the cab company; and that as a result of such collision Martha Nisi was thrown to the street and killed. The plaintiffs further alleged that the death of Martha Nisi was directly caused by the negligence of the driver of such taxicab in the following respects: (1) In operating the taxicab at such time at an excessive rate of speed; (2) in his failing to keep a proper lookout at such time and place; (3) in failing to keep the taxicab under proper control; and (4) in failing to operate the taxicab on the right or east side of the street.

The first cause of action alleged in the plaintiffs' petition related to the loss of services to the surviving husband and the second cause of action related to burial expenses and other expenses incident thereto.

For answer to the plaintiffs' petition the defendant admitted that the plaintiffs were the duly authorized, appointed, qualified, and acting administrator and administratrix of the estate of Martha Nisi, deceased, and were residents of Omaha; that the defendant was engaged as a common carrier in the taxicab business in the city; and that at the time and place set out in the plaintiffs' petition an accident occurred and as a result thereof the plaintiffs' decedent met death. The defendant's answer denied all other allegations contained in the petition, and further denied that its driver was negligent. The answer then claimed that the sole and proximate cause of the accident and resulting death of Martha Nisi was her contributory negligence which was more than slight in failing to cross the street on a crosswalk; in failing to keep a proper lookout or to take precautions for her safety; and in moving into the path of the defendant's vehicle. Defendant prayed that the plaintiffs' petition be dismissed.

For reply to the defendant's answer, the plaintiffs denied all of the allegations contained in such answer which were not admissions of plaintiffs' petition.

The defendant assigns as error (1) that the trial court erred in overruling defendant's motion for directed verdict at the conclusion of plaintiffs' evidence and at the conclusion of all of the evidence; (2) that the trial court erred in overruling the defendant's motion to set aside the verdict and judgment and for judgment in accordance with the motion for directed verdict; and (3) that the trial court erred in refusing to hold that the plaintiffs' decedent was guilty of contributory negligence as a matter of law.

The following rules of law are applicable to this case.

In Corbitt v. Omaha Transit Co., 162 Neb. 598, 77 N.W.2d 144, 145, this court held: 'A motion for a directed verdict must for the purpose of decision thereon be treated as an admission of the truth of all material and relevant evidence submitted on behalf of the party against whom the motion is directed. Such party is entitled to have every controverted fact resolved in his favor, and to have the benefit of every inference that can reasonably be deduced from the evidence.'

It is not the province of this court in reviewing the record in an action at law to resolve conflicts in or weigh the evidence. It is presumed in such an action that controverted facts were decided by the jury in favor of the successful party, and its finding based on conflicting evidence will not be disturbed unless clearly wrong. See, Snyder v. Farmers Irr. Dist., 157 Neb. 771, 61 N.W.2d 557; Shields v. County of Buffalo, 161 Neb. 34, 71 N.W.2d 701.

The record shows that a police officer of the city of Omaha assigned to the traffic investigation division of the police department arrived at the scene of the accident shortly after 9:20 p. m., on May 30, 1958. Upon arriving at the scene, he found a vehicle and the body of a female person. The pavement was dry and it was generally clear that evening. He made an investigation in the 1300 block on South Tenth Street. He testified that the block constitutes several blocks between William Street and Pierce Street, with no intervening cross streets between those two streets; and that the closest stop-and-go signal is on South Tenth and William Streets, approximately 4 blocks from the general scene of the accident. He asked the driver of the Checker taxicab, which was the vehicle he found at the scene of the accident, to tell him and to show him approximately where the party stepped from the curb and where she was struck. The driver pointed out a place in front of 1315 South Tenth Street, on the east side of the street. This witness further testified that South Tenth Street is 50 feet 2 inches wide. The taxicab was approximately 69 feet north of the point where the driver of the taxicab indicated it struck Mrs. Nisi. There was a white line in the center of South Tenth Street. This street runs north and south. From his investigation, the officer determined that there were skid marks approximately down the center of the white line, and some skid marks slightly west of the center line. The skid marks extended backwards from the right rear wheel of the taxicab and east of the enter line of the pavement. The skid marks began in front of the residence at 1315 South Tenth Street and continued northward and ended at the rear wheels of the taxicab. The body of Mrs. Nisi was found 23 feet 8 inches from the left front wheel of the taxicab and 21 feet 9 inches from the right front wheel of the taxicab. The body was lying on its back. He could see a bone sticking through the skin on one of the legs, and the face was covered with blood. He further...