Parks v. Metz

• Decision Date: 25 July 1941
• Docket Number: 31076
• Citation: 299 N.W. 643,140 Neb. 235
• Parties: RAY PARKS, APPELLEE v. WILLIAM W. METZ ET AL., APPELLANTS
• Court: Nebraska Supreme Court

299 N.W. 643

140 Neb. 235

RAY PARKS, APPELLEE v. WILLIAM W. METZ ET AL., APPELLANTS

No. 31076

Supreme Court of Nebraska

July 25, 1941

APPEAL from the district court for Otoe county: WILMER W. WILSON JUDGE. Affirmed.

AFFIRMED.

Syllabus by the Court.

1. " A motion for a directed verdict must, for the purpose of a 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, and said 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 facts in evidence." Moncrief v. Interstate Transit Lines, 129 Neb. 168, 261 N.W. 163.

2. Where evidence is in conflict and such that reasonable minds may draw different conclusions therefrom, the question of negligence and comparative and contributory negligence are for the determination of the jury.

3. Evidence examined, and held sufficient to require the submission to the jury of the questions of negligence and of comparative and contributory negligence.

4. It is not error for the trial court to refuse an instruction tendered by defendants, where the law applicable to the case has been given by the court in its instructions.

Appeal from District Court, Otoe County; Wilson, Judge.

Action for damages arising out of automobile collision by Ray Parks against William W. Metz, and others. The defendants filed a cross-petition. From a judgment for the plaintiff, the defendants appeal.

Affirmed.

Lloyd E. Peterson, for appellants.

Clarence G. Miles and Thomas E. Dunbar, contra.

Heard before PAINE, CARTER and MESSMORE, JJ., and ELDRED and TEWELL, District Judges.

OPINION

ELDRED, District Judge.

This is an automobile damage suit. Plaintiff, appellee, is seeking to recover for personal injuries and property damage arising out of a collision between an automobile owned and driven by plaintiff and a Studebaker one-ton truck owned by the defendants William W. Metz, Frank B. Chapin and William A Williams, doing business as Greene's Ice Cream Factory, and driven by the defendant Kenneth Conaway, at an intersection about one mile west of Avoca, on state highway No. 50, an arterial highway extending north and south, and a county highway extending east and west, and having stop signs. Defendants filed cross-petition for property damage to their truck. On trial there was a verdict and judgment in favor of the plaintiff and against defendants. Defendants have appealed. Appellants' first assignment of errors relied upon for reversal is: "The court erred in failing to direct a verdict in favor of the defendants at the close of plaintiff's case;" and, second, "The court erred in failing to direct a verdict at the close of all the evidence." These assignments will be considered together.

The specific acts of alleged negligence charged by plaintiff against defendants in his petition, and submitted by the court to the jury, in substance, are: That the driver of said truck was not maintaining a proper lookout for those crossing said intersection; that he was driving said truck at a high and excessive rate of speed under the circumstances; and that, after seeing plaintiff in said intersection, failed and neglected to slacken the speed of said truck, but drove the said truck at high speed directly toward and against plaintiff's automobile.

The specific acts of alleged negligence charged by defendants against plaintiff, and submitted by the court to the jury, in substance are: In failing to bring his automobile to a stop and allowing traffic upon said arterial highway to proceed without obstruction; in failing to give the defendant Conaway warning or notice of his approach; in disregarding the condition of the highway; and in failing to keep a proper lookout for traffic approaching and entering said intersection from the north, and to observe the truck driven by defendant Conaway in time to avoid a collision therewith; or if he saw the approach of said car of defendant in time to avoid collision therewith, then in failing to avoid said collision.

The evidence pertinent to cause of collision discloses that state highway No. 50 is an arterial highway with a graveled surface and well maintained, extending north and south a short distance west of Avoca. On the date of the collision involved herein, a county highway with graveled surface and extending east and west intersected highway No. 50 about one mile west of Avoca. This county highway has stop signs on both sides where it intersects the arterial highway No. 50. On September 15, 1939, at about 3 o'clock p. m., the plaintiff, a man 55 years of age, was traveling west from Avoca on said county highway, driving his 1933 Terraplane four-door sedan. The refrigerator truck of the defendants Metz, Chapin and Williams, weighing 5,200 pounds without load, was at the same time being driven by defendant Kenneth Conaway, 24 years of age, south on highway No. 50, and was carrying about one-half load. The day was clear; the collision occurred at the intersection of said roads, the point of contact being about the center of the east and west road, and about three feet east of the west line of the traveled portion of the north and south road. Both drivers had been over the road at place of collision many times before. After collision plaintiff's car was in ditch at southwest corner of intersection, lying on right side, front end facing about west; the defendants' truck was about a quarter of a mile south at bridge at foot of hill.

Plaintiff testified that he was a salesman of hog and poultry minerals and did culling of poultry. On the afternoon of September 15 1939, at about 3 o'clock, he was going from Avoca to one Moore's, about one and one-half miles west of Avoca, traveling in a 1933 four-door Terraplane, on graveled highway to highway No. 50 one mile. "I knew there was a stop button there and there was a hill, and when I went down there to the stop button, I stopped, * * * and then started up slow, because there was a ridge where the maintainer had been by, and started in low and looked up the hill to the north; looked south, and couldn't see any car coming and I got about half-way across and I heard a roar and I looked up and here was a big white truck right on me and when it hit me it seemed to just raise me right off the ground and it came down on the same side that it hit me; came down on the right side. * * * A. Well, I stopped at the stop button and I couldn't say whether I was by it or just even with it." When started up after stopping, started in low; was alone that day; had driven cars since 1914; able to judge speed of car very closely; entered intersection at about five or six miles an hour. When he first knew of the approach of the truck which struck him, he was about the center of the intersection or a little past. Proceeded directly west on right side, or north side of crossroad; on north side of east and west highway. "When he hit me it raised the car right off the wheels; it seemed to go right up in the air and it went in the ditch, and when I got squared around I was down in the bottom on the right door and then I tried to get up two or three times and finally I got up and stood with my head and shoulders out through the other door. I couldn't hardly get up I hurt so through my chest and my arm. I could only use one hand to get stood up. My head was cut and there was blood all over me. I could only see out of one eye; the blood was running over my right eye and I finally got stood up through the door and pretty soon a young man came along there and tried to get me out." Car was on right side. "The Court: How far away was the truck when you first saw it? A. Well, I would say a couple hundred feet. The Court: Did you observe its approach from that distance up to the time it hit you? A. I heard it roar and I looked up and it seemed to be coming right at me, I would judge, a couple of hundred feet away. The Court: You saw the truck two hundred feet away? A. I would imagine about that. The Court: What did you do then? A. Well, I naturally glanced ahead to see if I could get away. The Court: How close was it to you when you saw it again? A. It was right on me and I was up in the air. The Court: It hit you? A. It hit me. Q. Do you know, Mr. Parks, whether or not the truck turned in its course from a straight north and south direction; just answer that 'yes' or 'no'? A. Yes. * * * The Court: You say you know whether the truck approaching you changed its course. If so, which way did it turn, approaching you? A. It headed right towards me. The Court: It never turned then? A. Kind of slaunch-ways. The Court: What do you mean by 'slaunch-ways?' A. I just don't know how to explain it. Q. Which way did the truck then seem to turn from the time you first saw it? * * * A. It came fully at me then. * * * Q. You say that you stopped at the stop sign? A. Yes, sir. Q. And from the stop sign you could see both ways? * * * A. Yes, on the highway No. 50 you can see south a long ways and north you can't see so far. * * * Q. Well, where you stopped how far north can you see? A. Well, I would say three or four hundred feet. Q. You can see to the top of the hill? A. No, sir. Q. You can see to the top of the hill from the edge of the road, can't you? A. Yes, sir. Q. You didn't stop at the edge of the road? A. I went slow at the edge of the road--let it roll down there. Q. Before you went into that intersection you could see to the top of the hill and there was no car coming? A. No, sir; you can't see to the top of the hill. Q. You can't? A. Yes, sir. Q. Because of the obstruction at the corner? A. Yes, sir. Q. So you stopped at a place where a view of the...