Smith v. Kellerman

• Citation: 4 Neb.App. 178,541 N.W.2d 59
• Decision Date: 28 November 1995
• Docket Number: No. A-93-1081,A-93-1081
• Parties: Harold J. SMITH, Jr., Appellant, v. Paul M. KELLERMAN, Appellee.
• Court: Court of Appeals of Nebraska

Page 59

541 N.W.2d 59

4 Neb.App. 178

Harold J. SMITH, Jr., Appellant, v. Paul M. KELLERMAN, Appellee.

No. A-93-1081.

Court of Appeals of Nebraska.

Nov. 28, 1995.

Syllabus by the Court

1. Directed Verdict. A directed verdict is proper only where reasonable minds cannot differ and can draw but one conclusion from the evidence, that is to say, where an issue should be decided as a matter of law.

2. Jury Instructions: Appeal and Error. Jury instructions are subject to the harmless error rule, and an erroneous jury instruction requires reversal only if the error adversely affects the substantial rights of the complaining party.

3. Motor Vehicles: Highways: Right-of-Way. A driver of a motor vehicle about to enter a highway protected by stop signs is required to come to a complete stop as near the right-of-way line as possible before driving onto the highway. After stopping, the driver must yield the right-of-way to any vehicle approaching so closely on the favored highway as to constitute an immediate hazard if the driver at the stop sign moves into or across the intersection.

4. Motor Vehicles: Negligence: Trial. Whether one fails to look or looks and sees an approaching vehicle, but misjudges its speed and distance, the question of negligence is usually for the jury, except in those cases where the evidence that the approaching vehicle was within the limit of danger is so conclusive that reasonable minds could not differ thereupon.

5. Motor Vehicles: Highways: Words and Phrases. A vehicle is located in a favored position when it is within the radius which denotes the limit of danger--a definition which focuses on the vehicle's geographic proximity to the collision point and the vehicle's favored status under the applicable rules of the road.

6. Liability: Contribution. A common liability to the same person must exist in order for there to be contribution.

7. Jury Instructions: Appeal and Error. It is the duty of the trial court to instruct on the proper law of the case, and failure to do so constitutes prejudicial error.

8. Appeal and Error: Words and Phrases. Plain error is error plainly evident from the record and of such a nature that to leave it uncorrected would result in damage to the integrity, reputation, or fairness of the judicial process.

9. Motor Vehicles: Right-of-Way. One does not forfeit his right-of-way by driving at an unlawful speed.

10. Motor Vehicles: Highways: Right-of-Way. An instruction that drivers required to stop must yield the right-of-way to cross traffic that is so close to the intersection and traveling at such a speed that it is not safe for them to proceed into the intersection includes within it the concept that unlawful speed does not forfeit right-of-way to a motorist who must stop for traffic on a favored roadway.

11. Trial: Jury Instructions. When it is necessary to draft a special definitional instruction, it should, whenever possible, be placed in an affirmative rather than a negative posture.

Gary L. Dolan, of Wolfe, Anderson, Hurd, Luers & Ahl, Lincoln, for appellant.

J. Arthur Curtiss and Stephanie Frazier Stacy, of Baylor, Evnen, Curtiss, Grimit & Witt, Lincoln, for appellee.

SIEVERS, C.J., and MUES and INBODY, JJ.

SIEVERS, Chief Judge.

This is an action for contribution stemming from a two-car collision occurring in Beatrice, Nebraska. The jury rejected Harold J. Smith, Jr.'s claim for contribution from Paul M. Kellerman. Smith now appeals to this court.

FACTUAL BACKGROUND

The collision occurred at night at the intersection of 19th and Dorsey Streets on December 8, 1989. Smith was northbound on 19th Street in his 1984 Grand Prix. Kellerman was eastbound on Dorsey Street in his 1975 Dodge Dart. There was a stop sign for the eastbound Kellerman vehicle at that intersection. Kellerman stopped at the stop sign and looked to his right, but his view was obscured by a bush. He pulled forward and looked again to the right and saw the headlights of the Smith vehicle approximately 1 1/2 to 2 blocks away. Kellerman looked to the left and then accelerated in a "normal" fashion across the intersection while looking straight ahead and without looking back to the right for the Smith vehicle. For his part, Smith saw the Kellerman vehicle at the intersection and saw it pull across into his path. Smith applied his brakes, locking them up and leaving 142 feet of preimpact skid marks, according to the testimony of Dr. Ted Sokol, an accident reconstructionist. Sokol also indicated that there were 70 feet of postimpact skid marks from the Smith vehicle. Sokol put the speed of the Smith vehicle between 66 to 77 m.p.h. immediately before Smith applied his brakes. Sokol put the speed of the Smith vehicle between 41 and 53 m.p.h. at impact and the speed of the Kellerman vehicle at 13 m.p.h. at impact. Sokol testified that the normal time for a driver to perceive danger is three-quarters of a second and that a like amount of time is typically needed to react to the danger. Consequently, Sokol's testimony placed the Smith vehicle approximately 310 feet from the intersection when Smith "began to perceive the Kellerman vehicle as a danger." Sokol further testified that when Kellerman pulled out from the stop sign it would not have been possible for Smith to stop before the collision, given the speed and distance involved. Although 19th Street is on the very edge of Beatrice and has houses on one side and farm fields on the other, the speed limit is 35 m.p.h. Both vehicles had passengers, and as a result of this accident, Smith's insurer, Amco Insurance Company, paid $163,800 in settlement of the personal injury claims of the various passengers in the two vehicles.

PROCEDURAL BACKGROUND

After receiving an assignment of Amco's interest, Smith filed suit against Kellerman for contribution, seeking 50 percent of the amount paid in settlement of the claims, or $81,900. Smith alleged that Kellerman was negligent in failing to yield the right-of-way, in failing to maintain reasonable control, and in failing to maintain a proper lookout. Kellerman admitted the occurrence of the accident and admitted Amco's assignment to Smith of its claim for contribution, but denied that he was negligent. At trial, Smith did not introduce evidence to dispute that he was speeding and admitted that he had consumed at least two beers prior to the accident. Richard Clinard, a litigation supervisor for Amco, testified about the settlements made by Amco. Clinard testified that based upon his experience and training, the settlements paid to the passengers were reasonable, and that they were made because of Amco's conclusion that its insured Smith was negligent. Kellerman introduced no evidence to dispute the reasonableness of the settlements made by Amco with the injured passengers in the two vehicles. Kellerman made motions for directed verdicts, and Smith moved for a finding that Kellerman was negligent as a matter of law. The motions were overruled, and the matter was submitted to the jury.

STANDARD OF REVIEW

A directed verdict is proper only where reasonable minds cannot differ and can draw but one conclusion from the evidence, that is to say, where an issue should be decided as a matter of law. Humphrey v. Nebraska Public Power Dist., 243 Neb. 872, 503 N.W.2d 211 (1993).

Jury instructions are subject to the harmless error rule, and an erroneous jury instruction requires reversal only if the error adversely affects the substantial rights of the complaining party. Bunnell v. Burlington Northern RR. Co., 247 Neb. 743, 530 N.W.2d 230 (1995).

With respect to questions of law, the appellate court has an obligation to reach independent conclusions, irrespective of determinations thereof made by any inferior court. Rains v. Becton, Dickinson & Co., 246 Neb. 746, 523 N.W.2d 506 (1994).

ASSIGNMENTS OF ERROR

Smith asserts two assignments of error: (1) The trial court erred in failing to grant his motion for a directed verdict made at the close of all of the evidence, and (2) the trial court erred in refusing to give his proposed instruction that "a driver does not lose his right-of-way by driving at an unlawful speed."

ANALYSIS

Yielding Right-of-Way at an Intersection.

We begin with Smith's claim that the trial court should have directed a verdict in his favor. Smith moved for both a finding that Kellerman was negligent as a matter of law and a verdict for half of the amounts paid by Amco. In support of this assignment, Smith cites Kasper v. Carlson, 232 Neb. 170, 440 N.W.2d 195 (1989), asserting that the facts there are nearly identical to the instant case. Smith relies heavily upon the following quote from Kasper:

In Chlopek [v. Schmall, 224 Neb. 78, 396 N.W.2d 103 (1986)], we also reiterated the rules applicable to cases involving violation of the right-of-way of the driver on the favored highway. A driver of a motor vehicle about to enter a highway protected by stop signs is required to come to a complete stop as near the right-of-way line as possible before driving onto the highway. After stopping, the driver must yield the right-of-way to any vehicle approaching so closely on the favored highway as to constitute an immediate hazard if the driver at the stop sign moves into or across the intersection. The driver has a duty to look both to the right and to the left and to maintain a proper lookout for the safety of himself and others. A person traveling on the favored street protected by stop signs of which he has knowledge may properly assume that motorists about to enter from a nonfavored street will observe the foregoing rules. Chlopek, supra, citing Hartman 232 Neb. at 174, 440 N.W.2d at 198.

v. Brady, 201 Neb. 558, 270 N.W.2d 909 (1978).

In Kasper, the southbound vehicle driven by plaintiff's decedent approached a T-intersection which was protected by a stop sign and upon which the eastbound defendants' truck was proceeding. One version of the evidence was that the truckdriver stopped at...