Schrage v. Miller
| Decision Date | 18 May 1932 |
| Docket Number | 27858 |
| Citation | 242 N.W. 649,123 Neb. 266 |
| Parties | JOHN E. SCHRAGE, APPELLEE, v. JOHN A. MILLER, APPELLANT |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Buffalo county: BRUNO O HOSTETLER, JUDGE. Affirmed.
AFFIRMED.
Syllabus by the Court.
1. It is not error for the trial court to instruct the jury in the language of the statute on the duty of an automobile driver entering or crossing a state highway intersection on which stop signs are erected, and omitting that portion of the statute in reference to the maintaining of such stop signs on roads intersecting such state highway when the same is not an issue in the case.
2. The reciprocal rights and duties of motorists, one traveling on a state highway and the other on an intersecting road, may be covered by separate instructions, and instructions proper and pertinent to the reciprocal rights and duties of said motorists may be in clear and concise language, and said instructions must be considered in their entirety to determine such reciprocal rights and duties.
3. It is the duty of a motorist, on entering or crossing a state highway from an intersecting road, to come to a full stop as near the right of way line as possible before driving onto such highway, and, regardless of direction, shall give the right of way to vehicles traveling on said highway, and where the evidence shows that the motorist did not stop at the stop sign placed at the intersection, it is not error to instruct in the language of the statute.
4. The reciprocal right or duty of a motorist on a state highway, on approaching an intersection, is that the driver, upon reaching the intersection, has the right of way over vehicles approaching on his left and may ordinarily proceed to cross, but if the situation is such as to indicate to the mind of an ordinarily prudent person in his position that to proceed would probably result in collision, then he should exercise ordinary care to prevent accident, even to the extent of waiving his right.
5. Ordinary care may be defined as such degree of care as an ordinarily prudent and reasonable man would exercise under the existing circumstances and conditions; whether or not ordinary care is used by the driver of an automobile is a question of fact under this instruction.
6. " Instructions given by the court to the jury must be considered as a whole, and the mere fact that a separate paragraph of the instructions (which states the elements necessary to allow plaintiff to recover) does not inform the jury that the defense of the contributory negligence of plaintiff was made by the defendant, nor state the law governing such defense, is not prejudicially erroneous, where the fact of such defense and the rules of law applicable thereto are stated in other paragraphs of the charge." Cornforth v. Graham Ice Cream Co., 109 Neb. 426, 191 N.W. 661.
7. Contributory negligence is an affirmative defense, the burden of proving which is on the party pleading it.
8. An instruction setting forth that the burden of proving contributory negligence on the part of plaintiff sufficient to defeat a recovery is upon the defendant, unless the evidence offered by the plaintiff discloses that the plaintiff was guilty of more than slight negligence as compared with the negligence of defendant, is not prejudicially erroneous when considered with all the other instructions in the case and when the court has given the defendant's requested instruction on the comparative negligence rule, although the trial court tried to clarify such rule in such instruction.
9. Comparative negligence statute merely changed the legal effect of contributory negligence. It did not change the rule placing the burden of proving such negligence upon defendant. Gerish v. Hinchey, 120 Neb. 51, 231 N.W. 503, and Killion v. Dinklage, 121 Neb. 322, 236 N.W. 757, in so far as they are in conflict, overruled.
10. It is not error for the trial court to refuse instructions tendered by the defendant, where the law applicable to the case has been given by the court in its instructions, and where instructions requested by the defendant assume facts as proved upon which there is a material controversy and assume some facts as proved which are not proved conclusively.
11. Ordinarily, in a civil action, statements made by plaintiff's counsel in an argument to the jury will not justify a reversal of the judgment, where it appears that an exception was made to the statement at the time it was made, the exception sustained, and the jury duly admonished by the court.
Appeal from District Court, Buffalo County; Hostetler, Judge.
Action by John E. Schrage against John Miller. Judgment for the plaintiff, and the defendant appeals.
Affirmed.
Baylor & Tou Velle, for appellant.
E. T. Hayes and Gray & Brumbaugh, contra.
Heard before ROSE, GOOD and DAY, JJ., and MESSMORE and NISLEY, District Judges.
This is an appeal from a judgment based upon a jury's verdict rendered in the district court for Buffalo county, where appellee, plaintiff below, recovered a verdict in the sum of $ 7,500 against appellant, defendant below. Motion for a new trial was overruled and defendant appeals to this court to reverse said judgment.
Plaintiff's petition alleges the residence of the parties, details the happening of the accident, sets forth certain injuries received by plaintiff, and alleges that the accident and injuries were the direct and proximate result of the negligence of defendant, setting forth certain acts of negligence of defendant, proximately causing said injuries, as follows: Entering a primary highway from a section line road without stopping, as required by law, and in violation of the stop sign stationed at the intersection of said primary highway and said section line road; entering said primary highway from said road at an approximate speed of 40 miles an hour; failing to blow his horn or give plaintiff notice of his intention to so proceed; failing to apply his brakes and to stop his car when the presence of plaintiff's car on said highway became known or should have become known to defendant; failing to keep a proper lookout, and in turning his car to the east and south and directly into and against plaintiff's car, when, by proceeding straight ahead or by turning to the right and west, he could have avoided colliding with plaintiff. The alleged injuries received by plaintiff in said accident are detailed at some length in his petition. Judgment is prayed in the sum of $ 15,198.50.
Defendant's answer admits the occurrence of the collision, generally denying each and every other allegation of the petition, and alleging affirmatively in part as follows: That plaintiff at said time and place committed careless and negligent acts of omission and commission which constituted the proximate cause of said collision and of the injuries and loss, if any, sustained by plaintiff, and that said plaintiff by his careless and negligent acts of omission and commission was guilty of contributory negligence and contributed to the cause of said collision and of the injuries and loss, if any, sustained by the plaintiff; further charging various specific acts of carelessness on the part of plaintiff. Plaintiff's reply was a general denial.
The record discloses that plaintiff, a farmer, 40 years of age, living a mile north of St. Libory was proceeding eastward in his Pontiac coupe with one John Evers from Kearney to his home at about 7:30 on the evening of April 10, 1930, on highway number 30, an arterial highway known as the Lincoln Highway, which parallels the Union Pacific right of way to the north thereof, said highway running in an almost straight east and west direction at the point of collision, which was some 6 miles east of Kearney; that at about the point of collision a road running from the north, known as the Buda school road, and also referred to as the Poole road, intersects with said highway; that as plaintiff approached the intersection he saw a car coming from the north towards the intersection at an estimated rate of speed of 45 miles an hour; that his car at the time was some 125 feet west of the intersection and defendant's car was at an estimated distance of 250 feet north of said intersection; that plaintiff did not continue to look at the other car coming from the north, but continued on his way, looking east; that he noticed a stop sign at the northwest corner of the intersection off the highway on which he was traveling and on the intersecting road; that when plaintiff next saw the approaching car he was on the south side of the highway, the front end of his car over into the intersection in question about 20 feet; that when he next saw the lights of defendant's car they were pointing in a southeasterly direction at the rear of his car; that defendant's car was about 30 feet from his car to the north at that time; that plaintiff did not hear a horn sounded, but was in a position to have heard it had one been blown; that at the time of the collision and immediately prior thereto he was driving at a rate of speed of about 25 miles an hour; that the rear part of his car was struck by the front right side and right bumper of defendant's car; that defendant's car was locked into plaintiff's car, the bumper of defendant's car being caught between the front and rear wheels of plaintiff's car on the west side thereof.
The testimony of defendant, a lawyer practicing in Kearney, was to the effect that he was driving a Studebaker Commander sedan at the time of the collision, accompanied by Mr Blackledge, his law partner; that just prior to the accident he was proceeding south to the intersection in question, intending to turn west there to Kearney; that there...
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