Rief v. Foy, 40998

• Decision Date: 01 June 1977
• Docket Number: No. 40998,40998
• Citation: 254 N.W.2d 86,198 Neb. 572
• Parties: Genevieve (Johnson) RIEF, Appellant, v. David A. FOY, Appellee.
• Court: Nebraska Supreme Court

Page 86

254 N.W.2d 86

198 Neb. 572

Genevieve (Johnson) RIEF, Appellant, v. David A. FOY, Appellee.

No. 40998.

Supreme Court of Nebraska.

June 1, 1977.

Syllabus by the Court

1. One entering a highway from a private road must yield the right-of-way to all vehicles approaching on such highway.

2. If the driver of an automobile entering a highway from a private road looks for approaching vehicles but fails to see one which is favored over him under the rules of the road, he is guilty of negligence.

3. Generally it is negligence for a motorist to drive an automobile on the highway in such a manner that he is unable to stop in time to avoid a collision with an object within his range of vision.

John J. Respeliers, of Respeliers & DiMari, Omaha, for appellant.

D. Nick Caporale and Michael G. Helms, of Schmid, Ford, Mooney, Frederick & Caporale, Omaha, for appellee.

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

BOSLAUGH, Justice.

This action arose out of an automobile accident that happened in Omaha, Nebraska, around 9 p. m., on April 15, 1974. The plaintiff, Genevieve Rief, had backed her automobile out of the driveway at 3702 North 60th Street intending to go south on 60th Street. The accident happened when the rear of her automobile was struck by the defendant's automobile which was southbound on 60th Street. The jury found against the plaintiff and awarded the defendant $4,000 on his counterclaim. The plaintiff has appealed.

The evidence shows that 60th Street is a four-lane street running north and south with a speed limit of 35 miles per hour. The residence at 3702 North 60th Street is located on the northwest corner of 60th and Pratt Streets. The driveway runs east and west. There is a hill on 60th Street which crests a short distance north of the driveway. Photographs taken with a camera located 54 inches above the surface of the street show that traffic approaching from the north has a clear view of 60th Street in front of 3702 North 60th from a point 220 feet north of the driveway. From a point 320 feet north of the driveway only a part of the upper portion of a vehicle would be visible to traffic proceeding south on 60th Street.

Both automobiles had their headlights on and there was a street light at the southwest corner of the intersection. It had been raining on the night the accident happened, but the evidence is in conflict as to whether it was still raining at the time the accident occurred.

The plaintiff testified that she looked to the north and to the south, saw no traffic approaching, and then backed slowly into the right lane or curb lane on 60th Street. After she had started to move forward to proceed south on 60th Street she saw the defendant's automobile approaching from the north in the same lane. When she first saw his automobile it appeared to be almost half a block away. The defendant's automobile struck the rear and right side of the plaintiff's automobile which then spun around and stopped, facing to the north.

The defendant testified that he had been bowling from 6:30 to 8:30 p. m. While bowling, he drank two or a "few" beers. He left the bowling alley and turned on to 60th Street at Ames Avenue. The weather was drizzly, he had his windshield wipers on, and the street was wet. He estimated his speed at 40 miles per hour and claimed his automobile was "hydroplaning." He did not see the plaintiff's automobile until he was about 30 feet away. The plaintiff's automobile was facing west and blocking both lanes so he turned into the center lane, applied his brakes, turned his "wheel" to the right and struck the plaintiff's automobile with the side of his automobile. His automobile left no skid marks and came to rest on the sidewalk against a retaining wall and a traffic light pole located just south of the driveway. The defendant does not remember anything after the impact.

Susan Mann was driving north on 60th Street at the time the accident happened. She saw the plaintiff's automobile backing from the driveway when she was half a block or a block...