Prince v. Petersen

• Citation: 12 N.W.2d 704,144 Neb. 134
• Decision Date: 14 January 1944
• Docket Number: 31689.
• Parties: PRINCE v. PETERSEN et al.
• Court: Nebraska Supreme Court

12 N.W.2d 704

144 Neb. 134

PRINCE v. PETERSEN et al.

No. 31689.

Supreme Court of Nebraska

January 14, 1944

Syllabus by the Court.

1. The admissions and declarations of a party to an action against his own interest, on a material matter, may be proved as original evidence, and it is not necessary to lay foundation therefor by cross-examination of such party.

2. The admissions and declarations of a party to an action against his own interest, on a material matter, contained in a deposition, may be proved as original evidence, and it is not necessary to lay foundation therefor by cross-examination of such party.

3. Where negligence is predicated on speed of a motor vehicle at the time of an accident the question of the admissibility of evidence of speed of a vehicle shortly prior to the time of the accident rests largely in the discretion of the trial court.

4. Before evidence of speed shortly before an accident is admissible for the purpose of being considered in determining speed at the time of the accident it must appear, either that the point was of such close proximity that a reasonable inference could be drawn that it was continued to the point of the accident, or, if more remote, that from evidence of other fact or circumstance a reasonable inference could be drawn that speed was continued at approximately the same rate over the intervening distance.

R. A Haggart, of St. Paul, and Harold A. Prince, of Grand Island for appellants.

Chambers Holland & Locke, of Lincoln, and A. J. Luebs, of Grand Island, for appellee.

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

YEAGER Justice.

This is an appeal in an action for damages by Glenn Prince, administrator of the estate of Lawrence H. Prince, deceased, plaintiff and appellant, against Walter Petersen, doing business as Nielsen & Petersen Company, and Charles D. Watson, defendants and appellees, originally instituted in the district court of Hall county, Nebraska, for the death of Lawrence H. Prince, deceased. Lawrence H. Prince was killed in a collision of two motor vehicles on February 28, 1942, at Darr, Dawson county, Nebraska, and it is claimed that death was caused by the negligence of the defendants. The case was tried to a jury which resulted in a verdict and judgment in favor of the defendants. From an order overruling motion for new trial and this judgment the plaintiff has appealed. Numerous assignments of error are set forth in the brief of appellant.

Certain uncontroverted facts as disclosed by the record are the following: On the evening of February 28, 1942, the deceased, Lawrence H. Prince, and his wife were riding in a Buick sedan with one Leonard Curren and his wife. The sedan was the property of Curren. They were proceeding westward on the Lincoln Highway or United States Highway No. 30 in Dawson county, Nebraska. Prince and Curren were in the front seat and the wives of the two men were in the rear seat. When they arrived at the town of Darr, which was near 9:30 P.M., they had a head-on collision with a truck, or as it is termed a semi-pickup truck, which was at the time being driven by defendant Watson in an easterly direction. The truck weighed about 13,000 pounds and it had on it a load of about 3,000 pounds. Watson at the time was in the employ of the defendant Petersen and was in the performance of service in the line of his employment. As a result of the collision Prince, Curren and Mrs. Curren received injuries as a result of which they died before anyone appeared on the scene. Mrs. Prince received injuries as a result of which she died two days later. The night was dark and the highway was covered with snow and was slippery therefrom. Heavy wet snow was falling at the time as it had been for some considerable period before. It appears that the outlines of the paving, which was about 20 feet in width, were not discernible.

The claim of the plaintiff is that the collision was the result of the negligence of the defendant Watson which was attributable also to the defendant Petersen because of the employer-employee relationship. The specifications of negligence, briefly stated, are the following: That the truck was operated carelessly, recklessly and at a dangerous, excessive and unlawful rate of speed taking into consideration the condition of the highway, its use and the traffic thereon; that the truck at the time was being operated on its left side of the highway; that the defendant Watson failed to accord the automobile in which the deceased was riding an equal portion of the highway; that the defendant Watson failed to have the truck under control; that defendant Watson failed to keep a proper lookout; that defendant Watson failed to divert the course of the truck when he saw, or, in the exercise of ordinary care, should have seen the automobile, in which plaintiff's decedent was riding, in a position of peril; that the defendant Watson failed properly to apply the brakes of the truck; and that defendant Watson failed, neglected and refused to bring the truck to a stop in the presence of imminent danger which he perceived or should have perceived.

The answers contained general denials of negligence and to the extent necessary to be set forth here, allegations that the collision was caused by the negligence of the driver of the automobile in which Prince was riding, as follows: That he operated it at a rate of speed which was not reasonable and proper under the circumstances; that he suddenly crossed the center of the highway into the path of the truck; that he failed to have the automobile under reasonable control; and that he failed to drive on the right hand side of the highway.

It is also alleged in the answers that the deceased was guilty of contributory negligence but this issue was not submitted therefore the specifications do not require mention here.

In support of his tendered issues the plaintiff sought to show by evidence that the defendant Watson was at the time of the collision driving on his left hand side of the highway. There were no eye-witnesses except the defendant and the occupants of the automobile in which Prince was riding. These latter, as has already been pointed out, were dead. Proof depended upon testimony as to the physical facts, that is, tracks, location of vehicles, condition of the vehicles, debris, etc., and legitimate inferences to be drawn therefrom, and statements, if any, of the defendant Watson.

The first assignment of error to which we direct our attention is that the court erroneously refused to admit in evidence on offer of plaintiff what was claimed to be an admission or admissions against interest by the defendant Watson. Prior to the trial of this case, but in another case pertaining to the accident in question, the deposition of Watson was taken. In his deposition the following questions and answers appear:

"Q. Regardless of what...