Schmeeckle v. Peterson, 35860

• Decision Date: 19 March 1965
• Docket Number: No. 35860,35860
• Citation: 178 Neb. 476,134 N.W.2d 37
• Parties: Dean SCHMEECKLE, Appellant, v. Carolyn J. PETERSON, Appellee.
• Court: Nebraska Supreme Court

Page 37

134 N.W.2d 37

178 Neb. 476

Dean SCHMEECKLE, Appellant, v. Carolyn J. PETERSON, Appellee.

No. 35860.

Supreme Court of Nebraska.

March 19, 1965.

Syllabus by the Court

1. In reviewing the evidence where a jury has returned a verdict for the defendant, the defendant must have the benefit of any and all reasonable inferences deducible from the proof.

2. To justify this court in interfering with the findings of a jury on a fact question, the preponderance of the evidence must be so clearly and obviously contrary to the findings that it is the duty of a reviewing court to correct the mistake.

3. Triers of fact are not required to accept as absolute verity every statement of a witness not contradicted by direct evidence. The persuasiveness of the evidence may be destroyed even though not contradicted by direct evidence.

4. The failure of a driver of an automobile, upon approaching an intersection, to look in the direction from which another automobile is approaching, where, by looking, he could see and avoid the collision that resulted, is more than slight negligence as a matter of law, and defeats recovery.

5. The drivers of vehicles approach an intersection at approximately the same time whenever the two vehicles are in such relative position that upon appraisal of all factors it should appear to a man of ordinary prudence that there is danger of collision if he proceeds.

6. When a collision occurs in the ordinary city or county intersection, unless there is evidence that one of the vehicles was traveling at a very much greater rate of speed than the other, it is self-evident that the vehicles were reaching the intersection at approximately the same time.

Wm. S. Padley, Ogallala, for appellant.

Smith Brothers, Lexington, for appellee.

Heard before WHITE, C. J., and CARTER, SPENCER, BOSLAUGH, BROWER, SMITH, and McCOWN, JJ.

SPENCER, Justice.

This is an action brought by Dean Schmeeckle, hereinafter referred to as plaintiff, against Carolyn J. Peterson, hereinafter referred to as defendant, for personal injuries and property damage occasioned by a collision. Defendant cross-petitioned, alleging personal injuries and property damage. The jury returned a vardict against the plaintiff on his petition and for the defendant on her cross-petition. Plaintiff has perfected an appeal to this court.

The collision occurred shortly after 8 a. m., on June 15, 1962, at a county road intersection in Dawson County, approximately 1 mile east of Gothenburg on U. S. Highway No. 30, 3/10 of a mile north and 1 mile east. The road surface of both roads was gravel. There were not stop signs at any of the corners. The volume of traffic on both roads was about the same and for all purposes they could be considered equal with respect to each other. The terrain at the scene was level, with no obstructions of any nature for at least one-half mile. The roads were straight and at the time in question were dry, although the weather was cloudy ald hazy. Plaintiff was driving a 1960 Corvair, approaching from the east. Defendant was driving a 1959 Chevrolet, approaching from the north.

The plaintiff was the only eyewitness to testify. The defendant sustained a concussion and could remember none of the details of the collision. We review the evidence in the light of the rule stated in Beavers v. Christensen, 176 Neb. 162, 125 N.W.2d 551: 'In reviewing the evidence where a jury has returned a verdict for the defendant, the defendant must have the benefit of any and all reasonable inferences deducible from the proof.'

Plaintiff testified that he approached the intersection at 45 miles per hour; that he observed the defendant's vehicle for about a quarter of a mile during which time he covered approximately the same distance; and that the last time he looked to the north and saw the defendant's vehicle, which he placed 1,285 feet north of the intersection, he was 742 feet from the intersection. He then looked to the south and never again looked to the north until he was crossing the intersection. He did not slacken his speed. He did not put on his brakes. He did not see the defendant, and he never heard the impact. Long after the accident, and in preparation for the trial, he went to the scene and measured the distance to the intersection from the point where he thought his vehicle was when he last looked north, and also from the point where he thought the defendant's vehicle was at that time. It was in this manner that he determined the relative positions of 742 feet and 1,285 feet.

The investigating patrolman, called as a witness by the plaintiff, testified that when he interviewed the plaintiff at the hospital after the accident, the plaintiff told him that he remembered looking north but did not see anything. The defendant's husband testified that he called on the plaintiff at the hospital after the accident and that the plaintiff told him he didn't know what happened and that he didn't see the defendant's car.

There were skid marks 28 feet in length from the north which were laid down by the defendant's car before the impact. The defendant's car came to rest facing north in the west ditch on the road she was traveling, 77 feet south of the end of the skid marks. The plaintiff's car came to rest in the south ditch facing north on the road he was traveling, 60 feet southwest of the end of the skid marks. The defendant's Chevrolet was approximately 900 pounds heavier than plaintiff's Corvair.

Plaintiff assigns as error that the jury returned a verdict which is contrary to and not supported by the evidence. As will more fully appear hereinafter, there is no merit to this contention. We consider this case in the light of the rule enunciated in Beavers v. Christensen, 176 Neb. 162, 125 N.W.2d 551: 'To justify this court in interfering with the findings of a jury on a fact question, the preponderance of the evidence must be so clearly and obviously contrary to the findings that it is the duty of a reviewing court to correct the mistake.'

Plaintiff complains that the jury failed to follow the instructions of the court. Plaintiff here is arguing that the jury ignored instruction No. 15, which reads: 'You are instructed that a vehicle which has entered an intersection and is crossing it at a lawful speed has the right of way over a vehicle approaching the intersection from a different direction into its path.' Plaintiff, however, ignores the fact that this instruction must be read in conjunction with all of the other instructions. The fact that plaintiff's car may have entered the intersection first is not the sole test. Here the defendant's car had the directional right-of-way, and in addition thereto laid down a skid mark of 28 feet to reach the point of impact.

In this same vein, plaintiff also complains that the jury ignored the portion of an instruction that a driver of any vehicle traveling at an unlawful speed shall forfeit any right-of-way which he might have. Plaintiff contends that his is the only testimony from which the speed of the vehicles could be determined, and that he placed the defendant's vehicle 500 feet further from the intersection than his own at the time he last saw it, and consequently insists defendant was exceeding the speed limit. There was testimony of two witnesses, one of whom plaintiff himself called, that immediately after the accident the plaintiff made the statement that he did not see the defendant's vehicle. Also, the jury could consider the fact that the measurements testified to were made long after the collision and for the purpose of testifying at the trial. The jury also had the testimony of the plaintiff that before he last looked north, defendant's car traveled one-quarter of a mile while he...