Roberts v. Carlson
| Decision Date | 17 February 1943 |
| Docket Number | 31507 |
| Citation | 8 N.W.2d 175,142 Neb. 851 |
| Parties | ROBERTS v. CARLSON. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
1. A motion for a directed verdict must for the purpose of decision thereon be treated as an admission of the truth of all material and relevant evidence submitted on behalf of the party against whom the motion is directed. Such party 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.
2. If contributory negligence is relied upon by defendant as an affirmative defense, the burden is upon him to prove it by a preponderance of the evidence pertinent to that issue contained in the whole record, except in so far as the same may appear in evidence adduced for the plaintiff.
3. Upon approaching a highway intersection, it is the duty of the driver of an automobile to look to the right and left for approaching vehicles; whether or not he did his full duty in that regard may, in some cases, be a question of law, where undisputed evidence or physical facts and circumstances control, but otherwise it is ordinarily one of fact for the jury upon consideration of all the evidence.
4. Where two motorists approach an intersection at or about the same time, the driver approaching from the right has the right of way, and he may ordinarily proceed to cross, having a legal right to assume that his right of way will be respected by the other driver, but if the situation is such as to indicate to the mind of an ordinarily careful and prudent person in his position that to proceed would probably result in a collision, then he should exercise ordinary care to prevent an accident, even to the extent of waiving his right of way.
5. In determining whether there is error in the giving of a sentence in an instruction, it must be considered in connection with the instruction of which it is a part and all other instructions given by the court. The true meaning of instructions is to be determined not from a separate phrase or paragraph, but by considering all that is said on each subject or branch of the case.
6. In common language the words "testimony" and "evidence" are used synonymously and interchangeably. The use of the word "testimony" instead of "evidence" in an instruction, where both oral evidence and physical facts and circumstances are defensively interposed, does not constitute reversible error where it is clear and obvious from all the court's instructions that it was intended that such physical facts and circumstances should also be considered by the jury.
Morrow & Miller, of Scottsbluff, and Frank P. Johnson, of Minatare, for appellee.
Heard before SIMMONS, C. J., and PAINE, CARTER, MESSMORE, YEAGER, CHAPPELL and WENKE, JJ.
Plaintiff and defendant, each driving his own car, had an accident at the center of graveled intersecting country roads. Plaintiff approached the intersection from the right and defendant from the left. A jury's verdict awarded plaintiff $1,200 damages. Defendant appeals, impressing upon this court by able brief and argument that plaintiff was guilty of contributory negligence more than slight as a matter of law requiring the trial court to sustain his motions to direct a verdict for defendant, and that the trial court erred in its refusal of certain requested instructions and the giving of others, more particularly instruction No. 21. A careful study of the entire record and applicable rules of law requires an affirmance of the judgment.
Defendant's motions, made at the close of plaintiff's case and renewed at the conclusion of all the evidence, to instruct the jury to return a verdict in his favor were each respectively overruled. To determine whether this was erroneous we examine the evidence, bearing in mind these well-known and oft-established rules: A motion for a directed verdict must for the purpose of decision thereon be treated as an admission of the truth of all material and relevant evidence submitted on behalf of the party against whom the motion is directed. Such party 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. Parks v. Metz, 140 Neb. 235, 299 N.W. 643. Also, if contributory negligence is relied upon by defendant as an affirmative defense, the burden is upon him to prove it by a preponderance of the evidence pertinent to that issue contained in the whole record, except in so far as the same may appear in evidence adduced for the plaintiff. Vertrees v Gage County, 81 Neb. 213, 115 N.W. 863; Schrage v. Miller, 123 Neb. 266, 242 N.W. 649.
The evidence discloses that on February 15, 1941, between 2 and 3 o'clock p. m., plaintiff, traveling west on the right side of a graveled country road at 35 miles an hour, looked to the left when he passed a high beet dump and scale house on the south side of the road 325 feet east of another intersecting graveled country road. Plaintiff failed to see any car coming from the south, although he continued to look to the left while he drove 100 feet. He then looked to the right until his vision cleared the intersection from the north for cars having the right of way over him, where the view was obstructed by trees, farm buildings, and a board windbreak abutting on the northeast corner. He then looked to the left again and, when approximately 40 feet from the intersection or 80 feet from the center thereof, he first saw defendant driving 40 miles an hour toward him from the south, at a point 15 feet south of the railroad track, the north rail of which was 72 feet from the center of the intersection. A standard gauge railroad is 4 feet 8 1/2 inches wide. Webster's New International Dictionary (2d Ed.) On this assumption defendant was then approximately 91 feet 8 1/2 inches distant from the center of the intersection.
Plaintiff instantly applied his brakes and skidded in the loose gravel to a point where the left front fender and headlight of his car and the right front fender and headlight of defendant's car collided at the center of the intersection. Thereafter plaintiff's car traveled to the north and west 47 feet 6 inches, and defendant's car traveled to the north and west 54 feet 10 inches. The state patrolman saw and measured the skid marks of plaintiff's car in the loose gravel, caused by putting on his brakes. They extended 38 feet up to the point of collision. He found no skid marks showing that defendant had applied his brakes. We find no evidence in the record that defendant made any effort to avoid the accident.
The cars were badly damaged and both plaintiff and defendant were injured. There is some evidence that defendant had no recollection of facts concerning the accident and that he did not testify for that reason. However, on the day that plaintiff left the hospital, in the presence of plaintiff and his wife, defendant told plaintiff, "he (defendant) was just looking the other way and that he just never at any time had seen me (plaintiff) and he thought he was just looking the other way." There is no direct admission in the evidence adduced for plaintiff or direct evidence adduced for defendant denying that plaintiff looked at the times, places, and in the manner claimed by him. Defendant's reliance upon Haffke v. Missouri P. R. Corporation, 110 Neb. 125, 193 N.W. 257, and Nelson v. Plautz, 130 Neb. 641, 265 N.W. 885, can be of little assistance to him under the circumstances. Considering the two cases we scan a difference from the case at bar. The plaintiffs in these cases never looked again.
It is admitted that plaintiff's view of the intersection from the north, where cars would have the right of way over him was obstructed as claimed by him. It is also admitted that the high beet dump and scale house, 325 feet east of the intersection, which before the trial had been...
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