Pearson v. Richard, 41613

• Citation: 271 N.W.2d 326,201 Neb. 621
• Decision Date: 08 November 1978
• Docket Number: No. 41613,41613
• Parties: Kenneth V. PEARSON, Administrator of the Estate of Viola D. Pearson, Deceased, Appellant, v. George E. RICHARD, Appellee.
• Court: Supreme Court of Nebraska

Page 326

271 N.W.2d 326

201 Neb. 621

Kenneth V. PEARSON, Administrator of the Estate of Viola D. Pearson, Deceased, Appellant, v. George E. RICHARD, Appellee.

No. 41613.

Supreme Court of Nebraska.

Nov. 8, 1978.

Syllabus by the Court

1. In determining the question of whether the evidence is sufficient to submit the issues of negligence and contributory negligence to the jury, a party is entitled to have all conflicts in the evidence resolved in his favor and the benefit of every reasonable inference that may be deduced from the evidence, and if reasonable minds might draw different conclusions from a set of facts thus resolved in favor of a party, the issues of negligence and contributory negligence are for a jury.

2. Negligence is a question of fact and may be proven by circumstantial evidence and physical facts. However, the law requires that the facts and circumstances proved, together with the inferences that may properly be drawn therefrom, indicate with reasonable certainty the negligent act charged.

3. The persuasiveness of direct evidence may be destroyed by the physical facts or other circumstantial evidence, even though not contradicted by direct evidence.

4. Where there is a reasonable dispute as to what the physical facts show, the conclusions to be drawn therefrom are for the jury. The credibility of witnesses and the weight to be given their testimony are solely for the consideration of the jury.

5. The presumption in an action for wrongful death that a decedent exercised reasonable care for his own safety has no probative force, is a mere rule of law, obtains only in the absence of direct or circumstantial evidence justifying an inference on the subject, and disappears when evidence is produced.

6. When a motorist enters an intersection of two highways he is obligated to look for approaching motor vehicles and to see those within that radius which denotes the limit of danger. If he fails to see a car which is favored over him under the rules of the road, he is guilty of contributory negligence sufficient to bar a recovery as a matter of law. If he fails to see an automobile not shown to be in a favored position the presumption is that its driver will respect his right-of-way and the question of his contributory negligence in proceeding to cross the intersection is a jury question.

7. The right-of-way which the driver of a vehicle is required to yield to the vehicle on the right is a qualified right-of-way. The driver on the right must exercise due care, may not proceed in disregard of the surrounding circumstances, and where necessary to avoid a collision may be required to yield the right-of-way. The fact that one may have the directional right-of-way does not permit him to proceed in utter disregard of traffic approaching from the left.

M. J. Bruckner, of Marti, Dalton, Bruckner, O'Gara & Keating, Lincoln, Haessler, Sullivan & Inbody, Wahoo, for appellant.

Ray C. Simmons, P. C., Fremont, for appellee.

Heard before SPENCER, C. J., Pro Tem., BOSLAUGH, McCOWN, CLINTON, BRODKEY and WHITE, JJ., and KUNS, Retired District Judge.

BRODKEY, Justice.

Kenneth V. Pearson, administrator of the estate of Viola D. Pearson, deceased, appeals to this court from the verdict of the jury in favor of defendant-appellee, George E. Richard, in a wrongful death action brought by said administrator to recover damages for the death of the deceased, Viola D. Pearson. The collision in question which resulted in the death of the decedent occurred on October 27, 1975, in the intersection of two open and uncontrolled gravel roads north and west of Ceresco, Nebraska. The accident in question involved an automobile driven by the decedent from the north into the intersection in a southerly direction, and a milk truck driven into the intersection by the appellee Richard, who was proceeding from the east to the west. Appellant's decedent died from injuries received in the accident.

In the petition filed by the administrator it is alleged that the sole and proximate cause of the accident was the negligence of the appellee in failing to keep a proper lookout; in failing to have his vehicle under reasonable control; in failing to yield the right-of-way to the decedent; and in operating his vehicle at an excessive rate of speed under the conditions then and there existing. In his answer, the appellee admitted the accident occurred but alleged that the sole proximate cause of the collision was the negligence of the decedent in failing to keep a proper lookout; in failing to have her vehicle under reasonable control; in failing to stop or turn or take any other action to avoid the collision; and in operating her vehicle at an excessive rate of speed under the conditions then and there existing. Both parties filed motions for summary judgment. The trial court overruled appellee's motion for summary judgment. The court partially sustained appellant's motion for summary judgment, finding that a genuine issue existed as to whether appellant's decedent was guilty of contributory negligence, which must be determined by the jury from all the surrounding facts and circumstances. The court found, however, that appellee was guilty of negligence as a matter of law and ordered that upon trial "defendant's negligence shall be deemed established and the trial conducted accordingly." Prior to the trial the appellee admitted negligence in one or more of the particulars claimed against him by the appellant and also admitted his negligence was a proximately contributing cause of the collision. The first trial, commencing April 18, 1977, resulted in a mistrial, and the case was retried to a jury, commencing May 3, 1977. The court instructed the jury that the appellee was negligent as a matter of law and that his negligence was a proximate cause of the accident. The court submitted for the jury's consideration the question of the contributory negligence of the decedent, if any, in failing to keep a proper lookout; and in failing to have her vehicle under reasonable control; as well as the comparison of the respective negligence of the parties; and the issue of damages. As previously stated, the jury returned a verdict for the appellee, whereupon the appellant perfected the appeal to this court.

Appellant assigns as error the action of the court in submitting the issue of the decedent's contributory negligence to the jury, alleging there was no competent evidence to support a finding that the decedent was negligent in failing to keep a proper lookout or in failing to have her vehicle under reasonable control. We affirm the judgment of the District Court.

As previously stated, the intersection where the accident occurred was not controlled by any traffic signs or signals. The visibility of both drivers was unobstructed, there being evidence that a motorist driving in a southerly direction at a point 431 feet north of the accident intersection would see a vehicle coming from the east from a point 361 feet east on the east-west road. There were no depressions or rises in the road during the last 431 feet of the road as it went south into the intersection. It is clear from the evidence there were no obstructions to block the view of either motorist at the northeast corner of the intersection. The initial point of impact of the vehicles was identified by the investigating officer as a point where the Pearson automobile's left front tire was pushed straight west. This was located 10 feet 9 inches south of the north edge of the east-west road and 14 feet 5 inches west of the east edge of the north-south road. Following the impact, the vehicles veered to the southwest into a field on the southwest corner of the intersection. The Richard truck continued west, then spun around 180 degrees to the left. The milk tank came off the top of the truck and flew approximately 20 feet high in the air shearing a telephone pole located 41 feet west of the west edge of the north-south road. After spinning around facing an easterly direction, the truck rolled over and subsequently landed on top of the Pearson vehicle, crushing Mrs. Pearson inside the vehicle. She died shortly after the accident. Richard, who approached the intersection from the east, which was to the left of the Pearson automobile, admitted that as he came down the hill from the east he was traveling 40-45 miles per hour. Another witness who observed the accident, testified that Richard's speed was approximately 40 miles per hour when his vehicle was approximately two car lengths from the intersection. Richard testified that he had made an observation for traffic coming from the north but never saw the Pearson automobile at any time before the accident, nor did he see any dust coming from any automobile approaching from the north. He did not recall hitting the Pearson car and did not apply his brakes at any time before the accident occurred. The...