Petersen v. Schneider

• Citation: 46 N.W.2d 355,153 Neb. 815
• Decision Date: 16 February 1951
• Docket Number: No. 32859,32859
• Parties: PETERSEN v. SCHNEIDER et al.
• Court: Supreme Court of Nebraska

Page 355

46 N.W.2d 355

153 Neb. 815

PETERSEN v. SCHNEIDER et al.

No. 32859 .

Supreme Court of Nebraska.

Feb. 16, 1951.

Rehearing Denied May 11, 1951.

See 47 N.W.2d ----.

Syllabus by the Court.

1. When the driver of a motor vehicle turning across a highway between intersections fails to look to the front and rear for oncoming traffic at a time and place when to look would be effective, or looks and negligently fails to see that which is in plain sight, or is in a position where he cannot see, a question for the court is usually presented.

2. Where such a driver looks but does not see an approaching motor vehicle because of unusual conditions or circumstances, or sees the approaching vehicle and erroneously misjudges its speed or distance, or for some other reason assumes he could safely complete the movement, the question of negligence is usually for the jury.

3. A left-hand turn across a public highway between intersections is fraught with danger, and one making such a movement is required to exercise a degree of care commensurate with the danger.

4. The giving of the statutory signal for a left turn under such circumstances will not absolve the driver from negligence where he fails to exercise care for his own safety, and that of others, by looking to the front and rear for the approach of other vehicles using the highway.

5. The failure to look before turning left across a public highway between intersections is negligence as a matter of law.

Otto H. Wellensiek, Nebraska City, Olsen & Holtorf, Gering, for appellant.

Neighbors & Danielson, Scottsbluff, for appellee.

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

CARTER, Justice.

This is an action for damages resulting from an automobile accident. The jury returned a verdict for the defendants and the plaintiff appeals.

The evidence shows that on November 8, 1948, at approximately 11 a. m., Paul H. Wellensiek, Glenn Heng, and the plaintiff, Alvin A. Petersen, were traveling east on U. S. Highway No. 26N about eight miles east of the village of Northport in Morrill County. The automobile belonged to the plaintiff and was being driven by Wellensiek. The day was clear and the pavement was dry. The highway was oiled, the oiled portion being about 28 feet in width. It was straight and level at the place where the accident occurred.

The evidence offered on behalf of the plaintiff shows that the three men were riding in the front seat of plaintiff's car and that they first observed defendants' truck approximately a quarter of a mile ahead of them, traveling east on the right-hand side of the highway. They were traveling at a speed of 45 to 50 miles an hour and the highway was free of traffic except for defendants' truck. Wellensiek, the driver of the car, testifies that he turned to the left side of the highway about 100 yards back of the truck for the purpose of passing it. He says that he sounded his horn until he was within 10 feet of the rear end of the truck. This evidence is corroborated by the other two men, except that one of them says the horn was first sounded 50 yards back of the truck. When the car was even with the rear end of the truck and four or five feet to the north of it the truck turned to the left across the highway to enter a private driveway. Wellensiek immediately turned his car to the left until the left wheels were off the oiled portion of the road. The truck struck the car about 18 inches in from the north edge of the oiled portion of the road. The front bumper and fender of the truck struck the automobile on its right side at some point at or near the right rear fender.

The private driveway runs north from the highway and it is approximately 18 feet in width. The collision occurred on the east edge of the private driveway, where it enters the main highway. There is an irrigation ditch which parallels the east side of the private drive about 25 feet east of it. East of the irrigation ditch is a borrow pit along the highway which is 2 feet lower than the highway and 12 to 15 feet wide. The automobile struck the irrigation ditch and rolled down the borrow pit. It came to a stop 191 feet east of the private drive. The automobile was almost completely destroyed. Wellensiek was unconscious and was unable to testify to anything that occurred after the collision. The plaintiff suffered serious injuries, the extent of which is not important on this appeal. The three men riding in the car testify that the driver of the truck did not signal an intention to turn across the highway into the private drive. Plaintiff testifies that he asked the defendant John Schneider, the driver of the truck, the question: 'Man, why didn't you signal when you made a left hand turn?' And Schneider answered: 'Well, I didn't think I would have to; that I was far enough ahead.'

The defendant John Schneider was the only witness for the defendants, the owners of the truck. His testimony is that he was driving his truck down the right-hand side of the highway at a speed of 35 to 40 miles an hour. He says that there was a beet box on the truck which was 7 feet 4 inches in width and with a depth of 32 inches. It extended 16 inches beyond the cab of the truck on each side. He says that he observed plaintiff's automobile coming behind him through his rear vision mirror and estimates that it was .6 of a mile back when he first saw it. He gave the speed at which the automobile was being driven as 70 miles an hour. He says that when he was within .1 of a mile from the entrance to the private drive, he slowed down to 20 miles an hour. When he was 300 feet from the private drive he rolled his left window down and then gave a left-hand signal of his intention to turn across the highway to the left, and continued to give such signal until he was 20 feet from the entrance to the private drive. The left window of the cab was down when the sheriff arrived at the scene of the accident shortly after its occurrence. On cross-examination Schneider was asked: 'You didn't look to see where it (plaintiff's car) was before you made the turn, did you?' He answered: 'I didn't figure it was necessary from the distance it was when I looked.' Defendant Schneider further states on cross-examination that he turned into the private drive at 'pretty much' of a right angle at about 20 miles an hour.

The statute regulating the turning of motor vehicles on a highway provides: '(a) No person shall turn a vehicle from the direct course upon a highway unless such movement can be made with reasonable safety, and then only after giving * * * an appropriate signal in the manner hereinafter provided in the event any other vehicle may be affected by such movement. (b) A signal of intention to turn right or left shall be given continuously during not less than the last fifty feet traveled by the vehicle before turning.' Section 39-7,115, R.S.1943 . A violation of this statute constitutes evidence of negligence under our holdings. In this respect we point out that the defendant failed to signal a left turn in compliance with this statute for the reason that he failed to signal his intention to turn left for a minimum distance of 50 feet before making the turn as the statute requires. The evidence of defendant that he did signal an intent to turn to the left from some point within 200 feet to within 20 feet of the point of turning, even though not a full compliance with the statute, is ordinarily competent as bearing on the degree of negligence or contributory negligence of the parties. Mann v. Standard Oil Co., 129 Neb. 226, 261 N.W. 168.

The most dangerous movement on public streets or highways is the left-hand turn. While the left-hand turn at intersections is within the purview of this statement, the left-hand turn across a favored public...