Paddack v. Patrick

• Decision Date: 14 December 1956
• Docket Number: No. 34016,34016
• Citation: 79 N.W.2d 701,163 Neb. 355
• Parties: Lillian E. PADDACK, Appellee, v. William R. PATRICK, Appellant.
• Court: Nebraska Supreme Court

Page 701

79 N.W.2d 701

163 Neb. 355

Lillian E. PADDACK, Appellee, v. William R. PATRICK, Appellant.

No. 34016.

Supreme Court of Nebraska.

Dec. 14, 1956.

Syllabus by the Court

1. A driver of a motor vehicle should have his car under such reasonable control as will enable him to avoid collision with other vehicles, assuming that the drivers thereof will exercise due care.

2. 'Reasonable control' by drivers of motor vehicles is such as will enable them to avoid collision with other vehicles operated without negligence in streets or intersections, and with pedestrians in the exercise of due care; but 'complete control' such as will only prevent a collision by anticipation of negligence or illegal disregard of traffic regulations, in absence of notice, warning, or knowledge, is not required by the laws of Nebraska.

3. A driver of a motor vehicle about to enter a highway protected by stop signs must stop as directed, look in both directions, and permit all vehicles to pass which are at such a distance and traveling at such a speed that it would be imprudent to proceed into the intersection.

4. Where a motorist on a nonfavored street stops at an intersecting arterial highway when the intersection is clear of traffic, looks to the right and left for approaching vehicles, acting as a reasonably prudent person in the exercise of due care would act in the belief that he has time and opportunity to safely cross, he is not liable for negligence merely because he attempts to do so.

5. Upon properly complying with the foregoing duties the driver, upon entering the intersection, does not have an absolute right-of-way which permits him to proceed without lookout but must continue to maintain a proper lookout for the safety of himself and others traveling upon the streets.

6. Where the driver of a motor vehicle approaching a through street or highway stops and looks and sees an approaching vehicle on the favored street or highway but erroneously judges its speed or distance or for some other reason assumes he can proceed with safety and not have a collision, the question of whether or not his conduct in doing so makes him guilty of contributory negligence is usually one for the jury.

7. A person traveling a favored street protected by a traffic signal, of which he was knowledge, may properly assume that oncoming traffic will obey it.

8. A user of the highways may assume, unless and until he has warning, notice, or knowledge to the contrary, that other users of the highways will use them in a lawful manner, and until he has such warning, notice, or knowledge, he is entitled to govern his actions in accordance with such assumption.

9. When it appears from the record that the verdict in a case is so clearly exorbitant or excessive as to indicate that it was the result of passion, prejudice, or mistake, or some means not apparent in the record, or it is clear that the jury disregarded the evidence or rules of law, then it is the duty and power of the trial court and of this court to set aside a verdict for damages so large that it does not find support in the evidence.

Fraser, Crofoot, Wenstrand, Stryker & Marshall, Robert G. Fraser, Omaha, for appellant.

Rice & Adams, Bellevue, Schrempp & Lathrop, Omaha, for appellee.

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

WENKE, Justice.

Lillian E. Paddack brought this action in the district court for Sarpy County against William R. Patrick. She therein claims a car accident, in which she was involved while driving her car, was caused by negligence of the defendant in driving his car and resulted in damage to her car and injuries to her person for which she seeks to recover. A jury awarded her a verdict of $5,000 from which defendant appeals, his motion for a new trial having been overruled.

The first question raised by appellant is, was the evidence, as a matter of law, sufficient to sustain the verdict? The question of appellant's negligence, if any, and the contributory negligence of appellee, if any, and the effect thereof were the issues tried and submitted to the jury. In considering this question we review the evidence under the often stated principle applicable when one of the parties has obtained a verdict. See Pospichal v. Wiley, 163 Neb. 236, 79 N.W.2d 275, for a full statement thereof.

The accident happened shortly after 5 p. m. on Thursday, June 2, 1955, when a car being driven by appellant ran into and against the side of a car being driven by appellee. It occurred in the southwest corner of the intersection of Highway No. 131 and Avery Road, the intersection being in Sarpy County, Nebraska. Highway No. 131 is a state highway which runs almost due north and south, being level north of the intersection but sloping upgrade toward the south. It has a paved traveling surface about 22 feet wide with a line marked down the center to indicate two lanes for travel, one for travel in each direction. It is a through highway, being protected from intersecting roads by stop signs, there being one on the south side of Avery Road 24 feet west of the west edge of the paved surface of Highway No. 131. The maximum speed authorized on Highway No. 131 at this point was 45 miles an hour. Avery Road is a graveled county road, although not 'a finished job,' running east and west. Where it intersects Highway No. 131 the corners are rounded. At the northwest corner of the intersection is a frame building referred to by the witnesses as the Avery Bar. It sets back 29 feet from the west edge of the paved surface of Highway No. 131, thus leaving room for cars or trucks to park between it and the highway. At the time here involved a dump truck was parked in this area facing south and parallel with, but 4 or 5 feet west of the paved surface of Highway No. 131 with the front end some 35 to 40 feet north of the north edge of Avery Road. Both drivers were familiar with the intersection, the weather was good, there was plenty of light, they were each driving alone, the highway was dry, driving conditions were good, and, at the time, no other vehicles were approaching the intersection.

Appellee worked as a waitress for the Jack and Jill restaurant in the Hill Hotel in downtown Omaha. She lived in Bellevue with her family which consisted of her husband and a son 7 years old. At the time of the accident she had left her work and was driving a 1953 Chevrolet coach, which she owned jointly with her husband, south on the right side of Highway No. 131 toward her home. Appellant lives east and north of Avery Station but has his office in Papillion. At the time of the accident he was driving his car, a 1953 Pontiac, from his office toward his home, intending to turn south on Highway No. 131 at the Avery intersection. As a result of the accident the left front fender, bumper, and headlight of appellant's car were damaged, and dirt and part of the headlight of his car lay on Highway No. 131 just in front of his car. His car came to a stop in the southwest corner of the intersection with its front wheels some 3 to 4 feet onto the paved surface thereof. After the collision appellee's car crossed Highway No. 131 and stopped just south of the southeast corner of the intersection astride the cement block of a culvert located there, with its front end down into a ditch. It had been damaged on the right side just back of the door. As a result of the impact appellee was thrown from her car. She was found under the back end thereof, where it had come to a stop, lying on a ridge of gravel located just to the east of the paved surface of Highway No. 131. This gives a general picture of the conditions and circumstances surrounding the accident. A more detailed discussion of the evidence relating to the conduct of both drivers leading up to and at the time of the impact will be set forth after we have announced the principles here applicable.

As stated in Spomer v. Allied Electric & Fixture Co., 120 Neb. 399, 232 N.W. 767, 768, and approved in Ficke v. Gibson, 153 Neb. 478, 45 N.W.2d 436:

"A driver of an automobile should have his car under such reasonable control as will enable him to avoid collision with other vehicles, assuming that the drivers thereof will exercise due care.' Thrapp v. Meyers, 114 Neb. 689, 209 N.W. 238, 47 A.L.R. 585; De Griselles v. Gans, 116 Neb. 835, 219 N.W. 235.

"Reasonable control' by drivers of motor vehicles is such as will enable them to avoid collision with other vehicles operated without negligence in streets or intersections, and with pedestrians in the exercise of due care; but 'complete control' such as will only prevent a collision by anticipation of negligence or illegal disregard of traffic regulations, in absence of notice, warning or knowledge, is not required by the laws of Nebraska.'

As to appellant, who was approaching a through highway protected by a stop sign, section 39-724, R.R.S.1943, provides in part: 'All motor vehicles entering or crossing such state highways on which stop signs are erected shall come to a full stop as near the right of way line as possible, before driving onto such state highway, and, regardless of direction, shall give the right of way to vehicles upon said highway.'

In regard thereto we have often held: 'A driver of a motor vehicle about to enter a highway protected by stop signs must stop as directed, look in both directions, and permit all vehicles to pass which are at such a distance and traveling at such a speed that it would be imprudent to proceed into the intersection.' Dorn v. Sturges, 157 Neb. 491, 59 N.W.2d 751, 758. See, also, Simcho v. Omaha & C. B. St. Ry. Co., 150 Neb. 634, 35 N.W.2d 501; Styskal v. Brickey, 158 Neb. 208, 62 N.W.2d 854; Meyer v. Hartford Bros. Gravel Co., 144 Neb. 808, 14 N.W.2d 660; Borcherding v. Eklund, 156 Neb. 196, 55 N.W.2d 643.

Or, as stated in Meyer v. Hartford Bros. Gravel Co., supra [144 Neb. 808, 14 N.W.2d 661]: 'A driver of a vehicle...