Parsons v. Cooperman, 33802

• Decision Date: 25 November 1955
• Docket Number: No. 33802,33802
• Citation: 161 Neb. 292,73 N.W.2d 235
• Parties: Roland W. PARSONS, Appellant, v. Harold COOPERMAN, first, real and true name unknown, Appellee.
• Court: Nebraska Supreme Court

Page 235

73 N.W.2d 235

161 Neb. 292

Roland W. PARSONS, Appellant, v. Harold COOPERMAN, first, real and true name unknown, Appellee.

No. 33802.

Supreme Court of Nebraska.

Nov. 25, 1955.

Syllabus by the Court.

1. In an action where there is any evidence which will support a finding for a party having the burden of proof, the trial court cannot disregard it and direct a verdict against him.

2. It is only where the evidence shows beyond dispute that plaintiff's negligence is more than slight as compared with defendant's negligence that it is proper for the trial court to instruct the jury to return a verdict or, as in the instant case, to dismiss the plaintiff's petition.

3. In those cases where reasonable minds may differ on the question of whether or not the operator of an automobile exercised the ordinary care 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.

4. The driver of an automobile, upon reaching an intersection, has the right-of-way over a vehicle approaching on his left, and may ordinarily proceed to cross; but if the situation is such as to indicate to the mind of an ordinarily prudent person in his position that to proceed would probably result in a collision, than he should exercise ordinary care to prevent an accident, even to the extent of waiving his right.

5. A motorist entering an intersection from the right is in a favored position and has the right-of-way, other things being equal, but such fact does not do away with the duty of the driver of the favored car to exercise ordinary care to avoid an accident.

Charles E. Kirchner, Gilbert S. Brown, Omaha, for appellant.

Pilcher, Haney & Howard, Omaha, for appellee.

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

WENKE, Justice.

This is an appeal from the district court for Douglas County by Roland W. Parsons, plaintiff below. Parsons sued Harold Cooperman in the municipal court of the city of Omaha to recover damages caused to his 1947 Mercury sedan when it was struck by Cooperman's 1953 Pontiac station wagon. In the municipal court Parsons recovered a judgment for $371.71. However, on appeal to the district court, Parsons' action was, on motion of the defendant, dismissed at the conclusion of the plaintiff's evidence. Plaintiff thereupon filed a motion for new trial and this appeal was taken from the overruling thereof.

Two questions are necessarily involved in this appeal: First, is appellant's evidence sufficient to sustain a verdict in his favor? If the answer is yes then the second question arises, does appellant's evidence establish that he was guilty of negligence sufficient, as a matter of law, to defeat his right to recover? In considering the evidence adduced to determine these questions we apply thereto the following principle: 'A motion for directed verdict or for judgment notwithstanding the 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.' Stark v. Turner, 154 Neb. 268, 47 N.W.2d 569, 570.

And further: 'In an action where there is any evidence which will support a finding for a party having the burden of proof, the trial court cannot disregard it and direct a verdict against him.' Stark v. Turner, supra.

'It is only where the evidence shows beyond dispute that plaintiff's negligence is more than slight as compared with defendant's negligence that it is proper for the trial court to instruct the jury to return a verdict or, as in the instant case, to dismiss the plaintiff's petition. See, Pahl v. Sprague, supra [152 Neb. 681, 42 N.W.2d 367]; Gorman v. Dalgas, supra [151 Neb. 1, 36 N.W.2d 561].' Evans v. Messick, 158 Neb. 485, 63 N.W.2d 491, 496.

'In those cases where reasonable minds may differ on the question of whether or not the operator of an automobile exercised the ordinary care 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.' Weisenmiller v. Nestor, 153 Neb. 153, 43 N.W.2d 568, 569. See, also, Plotkin v. Checker Cab Co., 133 Neb. 1, 274 N.W. 198; Costello v. Hild, 152 Neb. 1, 40 N.W.2d 228; Parks v. Metz, 140 Neb. 235, 229 N.W. 643.

This action arises out of an automobile accident that happened in the city of Omaha about 10 a. m. on Monday, February 15, 1954, in the intersection of Fourteenth and Cass Streets. Both Fourteenth and Cass Streets are paved. Fourteenth Street to a width of 60 feet and Cass Street, west of the intersection, to a width of 60 feet but east thereof to a width of only 30 feet. The north curbline of Cass Street is in a straight line east and west of the intersection, the break occurring in the south curbline. Thus the south curbline of Cass Street east of the intersection would be the same as the center line of Cass Street west of the intersection if the curbline was extended west across the intersection. There were no stop or slow signs on either street to control traffic upon approaching and entering the intersection. Neither were there center lines marked on the streets.

On the day in question, which was partly cloudy, the appellant was driving his car south on Fourteenth Street. He was familiar with the street, having driven over it on previous occasions. He was driving on the inner lane for southbound traffic, Fourteenth Street having four lanes for travel, two for northbound and two for southbound traffic. The inner driving lane is adjacent to the center of the street. Fourteenth Street, north of the intersection, also had parallel parking areas on both sides extending along the curbs to its intersection with Cass Street. At the time appellant was approaching the intersection from the north appellee was approaching it from the east on Cass Street, driving his station wagon on about the middle of the paved surface thereof. East of the intersection there are five railroad tracks running parallel with Fourteenth Street. The west rail of the track farthest to the west is about 20 feet east of the east curbline of Fourteenth Street.

As appellant approached the intersection he looked to his left, or east, when he got to a point where he could see past the cars which were then parked along the east side of Fourteenth Street and saw appellee approaching the intersection in his station wagon. When appellant first observed appellee's station wagon the front of appellant's car was about 15 feet north of the north curbline of Cass Street and traveling about 20 to 25 miles an hour. The speed limit in the area of Omaha where the intersection is located is 25 miles an hour. Appellant testified that when he saw the station wagon it was on the first set of railroad tracks east of the intersection; that it was about 20 to 25 feet east of the east curbline of Fourteenth Street; and that it was traveling about 25 to 30 miles an hour. Appellant upon observing the station wagon, immediately applied his brakes but did not turn his car. He continued straight ahead into the intersection. The brakes started taking effect and when the rear wheels of his car were some 2 to 4 feet north of the north curbline of Cass Street they left marks from there to where it stopped. It stopped when the rear wheels were some 8 to 10 feet south of the north curbline of Cass Street, thus causing it to stop in the northwest quarter of the intersection as it relates to the width of Cass Street to the west. When appellant's car came to a stop its front end was some 5 to 7 feet north of the center of Cass Street to the west extended into the intersection, the car being about 15 feet long. Appellant, by applying his brakes, had slowed his car so that when it crossed the north curbline of Cass Street and entered the intersection, which he testified was prior to appellee's station wagon entering the intersection, it was going from 10 to 15 miles an hour. The station wagon, owned and being driven by appellee, proceeded in the center of Cass Street until it entered the intersection and thereafter continued, without changing its course or diminishing its speed, until the collision occurred. There were no tire marks of any kind on the pavement to the east of the point of the collision.

The collision did not materially move...