Parsons v. Berry
| Decision Date | 24 January 1936 |
| Docket Number | 29422 |
| Citation | 264 N.W. 742,130 Neb. 264 |
| Parties | JAMES W. PARSONS, APPELLEE, v. L. E. BERRY ET AL., APPELLANTS |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Lancaster county: JEFFERSON H BROADY, JUDGE. Affirmed.
AFFIRMED.
Syllabus by the Court.
1. Conflicting evidence of negligence in a law action is for the jury.
2. The doctrine of last clear chance applies in those cases where there is negligence of the defendant subsequent to the negligence of the plaintiff and the defendant's negligence is the proximate cause of the injury.
3. If the jury believed that the defendant had the last clear chance to avoid this automobile collision, she could be held responsible therefor if, by the exercise of ordinary care she could have averted the injury to plaintiff.
Appeal from District Court, Lancaster County; Broady, Judge.
Action by James W. Parsons against L. E. Berry and wife. From a judgment for plaintiff, defendants appeal.
Affirmed.
Baylor & Tou Velle and George Healey, for appellants.
Comstock & Comstock and I. D. Beynon, contra.
Heard before GOSS, C. J., ROSE, GOOD, EBERLY, PAINE and CARTER, JJ.
This is an appeal from an action brought to recover damages for personal injuries received in an automobile collision, in which a judgment was entered for the plaintiff and appellee for the amount of the verdict of $ 7,500.
This accident occurred on September 28, 1933, just north of the city of Lincoln, at the intersection of Twenty-seventh street and Adams street, at which point U.S. Highway No. 77 runs on Adams street. The plaintiff, aged 63 years, was driving his Model T Ford automobile, and seated with him in the front seat were his son and niece. The rear part of this Ford automobile had been made over into a box for carrying things. It is the testimony of the plaintiff that he was not running over 15 or 20 miles an hour at any time as he approached the intersection of Twenty-seventh and Adams streets, and that he came to a full stop at the stopbutton. It was about 4 o'clock in the afternoon of a clear day. He looked to the west and saw the car of the appellant, Mrs. Edith Berry, just crossing a bridge located about 1,000 feet west of the intersection, and he slowly started from the stop-button, and upon looking again to the west he discovered that the 1930 Chevrolet sedan in which Mrs. Berry was approaching him was being driven at between 60 and 70 miles an hour, and that she was then within 500 feet of him. He continued on across the center of the intersection to turn west on No. 77, and when his car was turning west, he testified, she lost control of her car and ran directly into his car, which was on the north side of No. 77. His car was turned completely over and landed against a telephone pole. The plaintiff was picked up, terribly injured, and taken to the Bryan Memorial Hospital, where it was found that he had a cut over his right eye, a cut finger, fractures of four ribs, and a fracture of a part of each of the third and fourth vertebrae, and he laid in a cast in the hospital for some weeks, and then wore a body brace.
The evidence on the part of the appellants is to the effect that Mrs. Berry was driving east on Adams street, going approximately 35 miles an hour, was unaccompanied; that she was immediately followed by two other cars. All three of these cars were driving east, and there were also three other cars approaching the same intersection, so there were a number of witnesses of this collision. Mrs. Berry testifies that she assumed that the plaintiff was going to stop at the intersection, but testifies that he did not, and drove into the intersection in front of her, and that she then did everything she possibly could to avoid a collision. She also insists that she had her car under reasonable control, and that if she diverged any to the left it was caused by the plaintiff driving onto the intersection without stopping. The appellant insists in her argument that all of the injuries of the plaintiff were minor in their nature, and that, if there was any angulation of the spine to the left, such curvature was a result of his occupation, and not a result of the accident.
There was evidence tending to support the claims of each party. It would be of no particular value to review all of the evidence of each of these witnesses as set out in 500 pages of the bill of exceptions, and it is sufficient to say that the jury must have believed the evidence of the plaintiff and his witnesses as to how the accident occurred, the respective speed of the cars, and the cause of the collision, for the jury returned a verdict in his favor for $ 7,500, and we find there is ample evidence to support the verdict. Therefore, we hold against the appellants on their contentions that there is not...
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