Pupkes v. Wilson, 34293

• Decision Date: 24 January 1958
• Docket Number: No. 34293,34293
• Citation: 165 Neb. 852,87 N.W.2d 556
• Parties: George PUPKES, Appellant, v. Oral V. WILSON, dba Wilson Beer Distributor, Appellee.
• Court: Nebraska Supreme Court

Page 556

87 N.W.2d 556

165 Neb. 852

George PUPKES, Appellant, v. Oral V. WILSON, dba Wilson Beer Distributor, Appellee.

No. 34293.

Supreme Court of Nebraska.

Jan. 24, 1958.

Syllabus by the Court.

1. When the driver of an automobile entering an intersection looks but fails to see an approaching automobile not shown to be in a favored position, the presumption is that the driver of the approaching automobile will respect his right-of-way, and the question of his contributory negligence in proceeding to cross the intersection is a jury question.

2. Where an automobile proceeding across a highway intersection had passed the center of the intersecting highway and was struck by a car approaching from its left, and it appears that no collision would have occurred if the approaching car had proceeded on its right-hand side, no justification being shown for the approaching car being to the left of the center of the highway, any negligence of the driver of the first car in failing to see the approach of the second is not a proximate cause of the accident.

Blake, Fabian & Fabian, J. H. Dickens, Kansas City, Kan., Lester L. Dunn, Lincoln, for appellant.

Chambers, Holland, Dudgeon & Hastings, Lincoln, for appellee.

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

CARTER, Justice.

Plaintiff sued to recover damages for injuries sustained in an automobile accident. The trial court dismissed the action at the close of plaintiff's evidence, and the plaintiff has appealed.

On April 19, 1955, at about 6:15 p. m., the plaintiff was driving his automobile in a southerly direction on Preston Road, a county highway running north and south in Richardson County. The road was graveled and dry. As he approached the intersection of Preston Road with State Highway No. 4, he stopped at the stop sign about 18 or 20 feet from the pavement on State Highway No. 4, a through highway protected by stop signs. Plaintiff testified that he looked to his right where he could see for a quarter of a mile and saw no traffic approaching. He then looked to his left, where he had an unobstructed view of 550 feet to the top of a grade rising towards the east, and saw no traffic within his range of vision. His wife testified that she was riding in the front seat and likewise looked and saw no traffic approaching from either direction. She told plaintiff that the road was clear, and he proceeded to drive across the intersection at a speed not exceeding 10 miles an hour. They did not look again for approaching traffic. When plaintiff had driven acorss the center of the intersection and at a point where the front wheels of the car were off the south edge of the pavement and the rear wheels were on the pavement, his car was struck on the left rear wheel by defendant's truck which was approaching from the east. As a result of the collision plaintiff sustained severe personal injuries. The action was commenced to recover damages for the injuries sustained because of the negligence of the driver of defendant's truck.

The evidence shows also that defendant's truck was traveling west on State Highway No. 4 at a speed of approximately 55 miles per hour when it was one-half mile east of the intersection. There were tire marks on the pavement extending 114 feet east from the point of impact. These marks were on the south side of the center line of the highway, they being in the lane for vehicles traveling east. The evidence shows that these tire marks followed a straight course slightly to the south until they reached the approximate point of impact, where they turned to the northwest. The truck overturned about 112 feet beyond the point of impact.

A witness testified that the driver of the truck told him he saw plaintiff's car enter the intersection as he was coming over the hill, that he thought plaintiff was going to turn to go into Falls City, that he started to pass him on his left, and that when he saw that plaintiff was not turning to the right he attempted to get back on his own side of the road to miss plaintiff's car but that he did not make it. The state patrolman who was called to the scene of the accident testified that defendant's driver said he saw plaintiff's car come across the pavement, that he did not see him stop for the stop sign, and that he hit the car broadside. The patrolman testified that the view line at the top of the grade to the east was 722 feet from the intersection.

On this evidence the trial court found that plaintiff was guilty of contributory negligence which was more than slight, as a matter of law, and dismissed the action. This is the equivalent of a directed verdict for the defendant. The only issue before the court is the correctness of the trial court's ruling that plaintiff was guilty of contributory negligence more than slight as a matter of law.

In considering the evidence plaintiff 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. Egenberger v. National Alfalfa Dehydrating & Milling Co., 164 Neb. 704, 83 N.W.2d 523.

The defendant relies upon the rule of law announced in Maska v. Stoll, 163 Neb. 857, 81 N.W.2d 571, 572, to the following effect: 'When a person enters an intersection of two streets or highways he is obligated to look for approaching cars 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...