Robins v. Sandoz

• Decision Date: 08 March 1963
• Docket Number: No. 35348,35348
• Citation: 120 N.W.2d 360,175 Neb. 5
• Parties: Bennett A. ROBINS, Appellee, v. Gerald F. SANDOZ, Appellant.
• Court: Nebraska Supreme Court

Page 360

120 N.W.2d 360

175 Neb. 5

Bennett A. ROBINS, Appellee, v. Gerald F. SANDOZ, Appellant.

No. 35348.

Supreme Court of Nebraska.

March 8, 1963.

Syllabus by the Court

1. As a general rule it is negligence as a matter of law for a motorist to drive an automobile so fast on a highway at night that he cannot stop in time to avoid a collision with an object within the area lighted by his headlights.

2. In a case where there is evidence that the operator of a motor vehicle on a highway at night collided with an object on account of his failure to see it, although it was within the range of his headlight, and on account thereof it may be said that he was guilty of negligence as a matter of law, and there is also evidence of negligence on the part of the party injured or damaged by the collision, a question for determination by a jury is presented under the comparative negligence statute.

3. The fact that a party may be guilty of negligence as a matter of law does not bar him from asserting the benefits of the comparative negligence statute.

4. A party is not entitled to appeal from an order or the rendition of a judgment which was made with his consent or upon his application.

Everett A. Anderson, Gordon, for appellant.

Frank F. Aplan, Rushville, Charles A. Fisher, Charles F. Fisher, Chadron, for appellee.

Heard before WHITE, C. J., and CARTER, MESSMORE, YEAGER, SPENCER, BOSLAUGH, and BROWER, JJ.

YEAGER, Justice.

This is an action for damages to personal property by Bennett A. Robins, plaintiff and appellee, growing out of a collision between an automobile of the plaintiff and one which was owned and operated by Gerald F. Sandoz, defendant and appellant. The action was based on alleged negligence on the part of the defendant. The defendant filed an answer in which he denied that he was guilty of any negligence. He also filed a cross- petition in which he charged that the collision was caused by the negligence of the plaintiff. The purpose of the cross-petition was to recover damages on account of personal injuries he claimed he had sustained and property damage to the automobile which he had operated.

A jury was duly impaneled and evidence was adduced by the parties. After the evidence of the parties had been adduced the plaintiff moved in the alternative for a directed verdict in favor of the plaintiff and against the defendant on the cross-petition, or to dismiss the cross-petition.

The defendant moved for a directed verdict in his favor.

The plaintiff then renewed his motion for directed verdict, and also moved that the court submit to the jury for determination only the question of the property damage to the plaintiff's automobile and his glasses.

The court sustained the motion to dismiss the cross-petition, found in effect as a matter of law that the plaintiff was guilty of no negligence and that the defendant's negligence was the sole cause of plaintiff's damage; and by recital in the bill of exceptions the court directed the jury to return a verdict in favor of plaintiff and against the defendant 'in the sum of the stipulated amount of $1866.' The stipulation referred to is the following: 'It is stipulated and agreed that the amount of damages sustained by the plaintiff, the property damage to the 1960 Buick automobile and the glasses is $1866, and the jury may return a verdict for that amount.' No formal written instruction appears in the record, but a verdict was accordingly returned and judgment rendered thereon.

The judgment contains the following: 'The parties then stipulated that the damages sustained by the plaintiff were the sum of $1,866.00, and that the jury should be directed to enter verdict in this amount, not waiving the right of defendant, to appeal, or claim error on other matters than the amount of the damages. The Court then directed the jury to return verdict for the plaintiff of $1,866.00 * * *.' Motion for new trial or for judgment notwithstanding the verdict was duly filed which motion was overruled. From this judgment and the order overruling the motion the defendant has appealed.

A number of assignments of error as grounds for reversal are set forth in the brief, but the total substance of all of the contentions is found in one of them, as follows: 'The trial court erred in finding and holding that there was no issue to be submitted to the jury under the defendant's theory of the case.'

By his answer and cross-petition the defendant alleged that the negligence of the plaintiff solely and proximately caused the collision. The effect of the adjudication was to say that the evidence in the case was insufficient to justify a submission to the jury of the question of whether or not the plaintiff was guilty of negligence which proximately caused or contributed to the collision. The defendant alleged that the plaintiff was guilty of negligence in the following particulars: In stopping and parking upon the highway in a negligent manner and in violation of section 39-757, R.R.S.1943; in failing to maintain a proper lookout; in failing to warn the defendant that the plaintiff's vehicle was parked in the defendant's lane of traffic; and in maintaining signal lamps and devices on his automobile in a defective condition.

By the assignments of error the question of whether or not there was evidence supporting these allegations or any of them sufficient for submission of the case for determination by a jury is presented. This requires a summary of the pertinent evidence, much of which is not in dispute.

On July 4, 1961, at about 9 p. m., the plaintiff was driving his 1960 Buick automobile in a northerly direction on Highway No. 87 and when he reached a point about 2 miles south of White Clay, Sheridan County, Nebraska, the right rear tire became flat and he drove over to the right or east side of the road and stopped to change the tire. He got out and prepared to change the tire. After he had been stopped for a period of time, estimated at from 15 to 20 minutes, the defendant came also from the south and drove an automobile into the rear end of the plaintiff's automobile. The front end of the defendant's automobile struck the rear end of plaintiff's automobile. As a result the two automobiles were piled up on the east side of the highway. The defendant estimated that his automobile was at the time moving at a rate of speed of 55 to 60 miles an hour. The night was dark but the weather condition was good. The view of the location to the south was not obstructed for as much as a quarter of a mile, and to the north there was no highway obstruction having a bearing on the accident.

There is no information as to the established width of the highway at the point involved, but it did have a traveled surface of a width of about 23 feet. At the approximate center was a while line. A witness testified, and the testimony is not disputed, that the width of the traveled surface to the west of the dividing line was 12 feet and to the east 10 feet 8 inches. The automobile of the plaintiff was stopped with its right rear wheel a short distance off this surface to the east which gave him needed opportunity to place the jack on the traveled surface for the purpose of changing the tire. There was some evidence bearing on the question of whether or not there was space farther to the right which the plaintiff could have occupied for the purpose of changing the tire, which would have afforded more space for passing in the north-bound driving lane. There was no obstruction between the west side of plaintiff's automobile and the west edge of the traveled surface. The clear space to the west or left-hand side of the highway was the portion west of the dividing line plus the distance from the dividing line to the west side of the plaintiff's automobile at the time of...