Price v. King, 33787

• Decision Date: 21 October 1955
• Docket Number: No. 33787,33787
• Citation: 72 N.W.2d 603,161 Neb. 123
• Parties: Otto L. PRICE, Administrator of the Estate of Nellie V. Price, Deceased, Appellee, v. Harry KING and Orville R. Conn, Appellants.
• Court: Nebraska Supreme Court

Page 603

72 N.W.2d 603

161 Neb. 123

Otto L. PRICE, Administrator of the Estate of Nellie V. Price, Deceased, Appellee, v. Harry KING and Orville R. Conn, Appellants.

No. 33787.

Supreme Court of Nebraska.

Oct. 21, 1955.

Syllabus by the Court.

1. Where different minds may reasonably draw different conclusions from the evidence, or there is a conflict in the evidence as to whether or not negligence or contributory negligence has been established, the question is for the jury.

2. It is only where the evidence shows beyond reasonable dispute that plaintiff's negligence is more than slight as compared with the negligence of the defendant that it is proper for the trial court to instruct the jury to return a verdict for the defendant or to enter a judgment notwithstanding the verdict in his behalf.

3. 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.

4. Negligence must be proved by direct evidence or by facts from which negligence can reasonably be inferred. In the absence of such proof negligence will not be presumed.

5. Instructions given to a jury must be construed together, and if when considered as a whole they properly state the law they are sufficient.

6. The burden of proof is on the plaintiff to prove negligence on the part of the defendant by a preponderance of the evidence. The burden of proof is on the defendant to prove contributory negligence on the part of the plaintiff by a preponderance of the evidence. An instruction to this effect cannot afford any basis for error.

C. E. Cronin, Grand Island, Clark J. Mingus, Ravenna, for appellants.

Cunningham & Cunningham, Grand Island, for appellee.

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

CARTER, Justice.

This is an action brought by Otto L. Price, administrator of the estate of Nellie V. Price, deceased, for the benefit of the next of kin of Nellie V. Price, to recover damages for her wrongful death. The jury returned a verdict for the plaintiff against the defendants in the sum of $20,000, and judgment was entered thereon. The defendants appeal.

The death of Nellie V. Price was the result of a collision between an automobile being driven by the deceased, Nellie V. Price, and a truck being driven by the defendant Harry King, and owned by the defendant Orville Conn. It occurred at the intersection of two graveled county roads about 4 miles west of Alda, Hall County, Nebraska, referred to in the record as the Bonsak corner, on October 13, 1953, at about 7:30 a. m. The weather was clear, visibility was good, and the roads were dry. There were no warning or stop signs on either road at the intersection. No question is raised by the appeal in regard to the amount of the damages as found by the jury. The assignments of error relate to the liability of the parties for negligence and to the correctness of the instructions of the court in submitting the case to the jury, if a jury question is found to exist.

The record shows that Mrs. Price was an employee of an ordnance plant near Grand Island, Nebraska. It was her custom to leave home about 7 a. m. and drive to work in her car. Immediately prior to the collision she was driving north as was her usual custom towards the intersection where the accident occurred. After the collision the automobile of the deceased was in the ditch, headed west, at the northeast corner of the intersection.

The truck being operated by the defendant King approached the intersection from the west. It was hauling a load of shelled corn and according to King was traveling at a speed of approximately 35 miles an hour. After the collision the truck was also in the ditch, headed west, at the northeast corner of the intersection. There is evidence that the truck was on top of the front end of the Price car.

Mrs. Price died approximately 3 hours after the accident without making any statement as to how it happened. A witness, John McDermott, testified that he talked with the defendant King shortly after the accident and that King said 'he did not see her until he hit her.'

The defendant King testified that he approached the intersection from the west at approximately 35 miles an hour. There was a cornfield to the south which had been picked out and he said that he could see the Price car approaching when he was west of the Bonzak barn, which was about 280 feet west of the north and south highway. He said Mrs. Price was twice as far away from the intersection at that time. He fixed the distance as three light poles south of the intersection. He said he looked again when he was 'pretty close to the intersection.' At this time, he said, the Price car was a 'considerable distance south' and that it 'was about twice as far from the front of her car to the intersection as from the front of my truck to the intersection.' He said he was from 7 to 11 steps from the west line of the intersection the last time he looked. He continued to drive at the same speed and at no time slowed down as he approached the intersection. His evidence is that he saw he had time to clear the intersection so he kept on going, but that the Price car hit the right front fender and wheel of his truck in the intersection. He states he was driving on his right-hand side of the road and that his truck was hit on the east side of the center of the intersection. He did not know where on the north and south road the Price car was being driven. He states that when the front of the truck was struck it went up in the air and that is the last he remembers as to what happened. He admits that he did not again look to the south after he came by the last row of corn in the field south of him because 'I felt I had plenty of time to get across the intersection.' He said he had on a heavy load and had to watch the road ahead of him, and for that reason he did not again look to the south. He said he knew that Mrs. Price had the right-of-way over him because she was approaching from his right.

There is evidence by the witness Bonsak that he saw the truck pass his place going east and that the Price car was about twice as far away from the intersection as the truck at that time. The witness Dobesh was standing in a cornfield southeast of the intersection while engaged in picking corn and watched the approach of both vehicles immediately prior to the collision. He said he saw the truck at the Bonsak trees and the car approaching near the point where he had a truck parked in his field. He stated that both the truck and car were traveling too fast when he saw them and that if their speeds were maintained there would be an accident. He testified that the truck was farther from the intersection when he saw it at the Bonsak trees than was the Price automobile.

There is evidence of some tire marks in the intersection. One was described as a brush mark indicating that a wheel had been pushed to the north. The condition of the car and truck is described after the accident. It is asserted by defendants that the damage to the truck shows that it was struck on the right front fender and wheel. This evidence is disputed. The pictures in evidence show that the truck and car were totally wrecked. The evidence is clear that the truck turned over and landed partly on the Price car. The physical facts are disputed and any conclusion reached from them is not at all conclusive.

The...