Sacher v. Petersen

• Decision Date: 18 April 1969
• Docket Number: No. 37105,37105
• Citation: 167 N.W.2d 384,184 Neb. 305
• Parties: Wayne T. SACHER, Appellant, v. Larry A. PETERSEN, Appellee.
• Court: Nebraska Supreme Court

Page 384

167 N.W.2d 384

184 Neb. 305

Wayne T. SACHER, Appellant, v. Larry A. PETERSEN, Appellee.

No. 37105.

Supreme Court of Nebraska.

April 18, 1969.

Syllabus by the Court

Where different minds may draw different conclusions or inferences, or where there is a conflict in the evidence, the matter at issue must be submitted to the jury.

Schrempp, Rosenthal, McLane & Bruckner, James R. Welsh, Omaha, for appellant.

Gross, Welch, Vinardi, Kauffman, Schatz & Day, Omaha, for appellee.

Heard before WHITE, C.J., CARTER, SPENCER, SMITH, McCOWN, and NEWTON, JJ., and KOKJER, District Judge.

McCOWN, Justice.

This is an action to recover for personal injuries and property damage allegedly resulting from an automobile accident. The jury verdict was for the defendant, and the plaintiff has appealed.

On August 24, 1964, at 4 p.m., a dry, clear day, the plaintiff, Wayne T. Sacher, was traveling south on Seventy-second Street in Omaha, Nebraska. There were four lanes of traffic, two southbound and two northbound. The plaintiff, in his small Goliath automobile, was proceeding south in the traffic lane next to the centerline. The defendant, Larry A. Petersen, in his standard size Chrysler, was following the plaintiff's vehicle in the same traffic lane and approximately three car-lengths behind. The vehicles were proceeding at a speed of 25 to 30 miles per hour down a slight grade extending for several blocks. The defendant had been following the plaintiff for some distance.

When the cars were approximately 200 feet north of Burt Street, and at a point where there was no intersection near, the plaintiff's car suddenly stopped. The defendant pur on his brakes and attempted to stop, but before he had completely stopped, he bumped the rear of plaintiff's vehicle. There was some traffic in the other southbound lane and in the northbound lanes.

There is a conflict in the evidence as to the force of the bump. The plaintiff testified that the impact knocked his vehicle 10 feet forward, while the defendant testified it moved a few inches. There was no damage of any kind to the defendant's automobile, and the repair estimate for the plaintiff's vehicle was $78.70. The plaintiff did not give a signal of any kind and had not looked to see if there was any traffic behind. He did testify that his brake lights were working, but the defendant testified that he did not see any hand signal or brake lights, and that he had no warning of any kind that plaintiff was going to make an abrupt stop.

The evidence is also in direct conflict as to the reason for plaintiff's sudden stop. Plaintiff testified that a car ahead of him stopped, but that it went on again after the accident. According to the plaintiff, that car made a 'very slow stop, a gradual stop, and I just stopped behind it.' The defendant testified that just before the accident occurred, he saw no car immediately ahead of the plaintiff's automobile, and that there was nothing about the plaintiff's car or about the visibility that would have precluded the defendant from seeing a car immediately ahead of plaintiff's car if there had been one there.

Plaintiff's assignments of error are solely that the court erred in submitting to the jury the question of plaintiff's contributory negligence, and erred in instructing the jury on the issue of plaintiff's negligence and contributory negligence. There is no assignment of error nor issue raised as to the form of the instructions given.

It appears to be plaintiff's contention that the driver of a motor vehicle who stops his car on the street in moving traffic without giving any signal of any kind, as a matter of law, cannot be guilty of negligence or contributory negligence, where his vehicle is...