Spaulding v. Howard

• Decision Date: 06 June 1947
• Docket Number: 32208.
• Citation: 27 N.W.2d 832,148 Neb. 496
• Parties: SPAULDING v. HOWARD.
• Court: Nebraska Supreme Court

27 N.W.2d 832

148 Neb. 496

SPAULDING v. HOWARD.

No. 32208.

Supreme Court of Nebraska

June 6, 1947

Appeal from District Court, Richardson County; Falloon Judge.

Syllabus by the Court

1. A motion for a directed verdict must for the purpose of decision thereon be treated as an admission of the truth of all material and relevant evidence submitted on behalf of the party against whom the motion is directed.

2. In a law action it is error for the trial court to direct a verdict for either of the parties on an issue of fact on which the evidence is conflicting. Such issue should be submitted to the jury for their determination.

3. If a driver confronted with an emergency turns his car to the left in an attempt to avoid a collision, the question of negligence is for the determination of the jury.

4. If the defendant pleads that the plaintiff was guilty of contributory negligence, or that the accident resulted solely from his negligence, the burden is upon the defendant to prove those defenses, and does not shift during the trial of the case, but he should receive the benefit of the plaintiff's evidence tending to prove those issues.

5. When instructions requested are substantially given in the charge prepared by the court on its own motion, it is not error to refuse to repeat them, though expressed in language different from that used by the court.

6. Error in instructions not prejudicial to the complaining party and not affecting the verdict, does not require reversal.

7. Where reasonable men might draw different conclusions from the evidence, negligence is a question for the jury.

Armstrong & McKnight, of Auburn, for appellant.

Jean B. Cain, of Falls City, Dan J. Riley, of Dawson, and Wendell Miller, of Falls City, for appellee.

Heard before SIMMONS, C. J., and PAINE, CARTER, MESSMORE, YEAGER CHAPPELL, and WENKE, JJ.

MESSMORE, Justice.

This is an action at law brought by the plaintiff to recover damages to his automobile and to his person, alleged to have been caused by the negligence of the defendant when plaintiff's automobile and defendant's truck collided.

The plaintiff's petition sets forth several charges of negligence against the defendant which he claims constitute the direct and proximate cause of the accident and the resulting damages to his automobile and person. The defendant's answer denies the affirmative allegations of the plaintiff's petition, and alleges that any damage to the plaintiff's automobile or to his person, sustained by virtue of the accident, was the direct and proximate result of the plaintiff's negligence. The cross-petition charges the plaintiff with negligence in certain respects, alleging that the plaintiff's negligence, so charged, was the direct and proximate cause of the accident resulting in damage to the defendant's truck, and the doctor bill which he paid in behalf of his wife. The reply, in effect, is a general denial to the answer. The answer to the cross-petition denies the allegations of negligence charged against the plaintiff contained therein.

The record discloses the plaintiff, a discharged war veteran, 27 years of age, on February 6, 1946, purchased a 1935 LaSalle coach in St. Joseph, Missouri for $625, and after the accident here involved it was worth $100. After purchasing the car he proceeded from St. Joseph to Dawson, Nebraska, to visit his mother. At a point about six miles north of Falls City Nebraska, he was driving on highway U S 73, an arterial highway extending north from Falls City having a cement surface 20 feet in width. At this point the highway makes a wide curve to the west, and approximately 200 feet north of the point where the curve commences, the highway joins with a gravel-surfaced road which proceeds to the east, referred to as the Barada road. There is a continuous down grade of highway U S 73 toward the north for a distance of about half a mile south of the curve heretofore mentioned. The highway markings in this vicinity, as testified to by an engineer, are as follows: 573 feet south of the intersection of the Barada road on highway U S 73, is a standard United States highway sign; further south, a distance of 873 feet from the Barada intersection, is a highway mile sign; 1691 feet south from the Barada road intersection is a steel post by a flume at the edge of the highway. On each side of the Barada road where it intersects with highway U S 73 are stop signs, approximately 38 1/2 feet distant from the east edge of the paved surface of highway U S 73.

The defendant, aged 52, engaged in farming for more than 30 years and living 16 miles north of Falls City, left his home about 1:15 p. m. the afternoon of February 6, 1946, which was a nice, sunshiny day. The surface of the road was dry. He was accompanied by his wife, and driving a 1940 International truck equipped with a stock rack, and loaded with livestock. The total weight was approximately 13,000 pounds, including the livestock. The defendant was familiar with the Barada road which he followed, having driven it for many years on an average of from two to six times a week. Arriving at the stop sign on the Barada road at about 2:00 or 2:30 in the afternoon, he stopped his truck adjacent to the stop sign on the south side of the road at the approximate distance of 38 1/2 feet east of the east edge of the paved surface of highway U S 73. His version as to what occurred thereafter, and as testified to by him in substance, is as follows: After stopping he looked to the right, or to the northwest; there were no cars in sight. He then looked to the south and saw a car, which later developed to be the plaintiff's car, which was a little south of the steel post, a distance of 1691 feet from the intersection. He estimated the plaintiff's car was south on highway U S 73 about 1800 feet distant from the intersection. He then proceeded into the intersection at a speed of two or three miles per hour, and when the front wheels of the truck were in the middle of the pavement, he saw the plaintiff's car which at that time was near the highway sign 873 feet south of the intersection. He drove in an arc, or circle, for the reason the Barada road is on a curve and the paving curves at this point, traveling a little less than 38 1/2 feet to reach the pavement on the highway. He then proceeded a distance of 97 1/2 feet south on the highway, with his entire truck on his own right hand side of the highway, or on the west side thereof. His speed in negotiating his truck in such manner averaged five miles per hour. The plaintiff was on his right hand side of the highway and driving at a high rate of speed, and when approximately within 15 to 20 feet of the defendant's truck, he angled a trifle, crossing to the left hand side of the highway and, as described by the defendant, with the speed of a 'cannon ball' collided with the defendant's truck, striking the truck on the bumper, bending the frame and the cross bar across the frame of the truck; the right wheel of the plaintiff's car striking the left corner of the bumper of the truck while the truck was in forward motion. The impact knocked the truck back across the road at least five feet, at indicated by the burned rubber mark on the road made by the left front wheel of the truck. When the plaintiff's car came to a stop it was up on the grass on the west side of the highway, possibly with one of its hind wheels on the pavement. It faced northwest. The right rear wheel of the truck was practically on the center of the cement highway, to the right. After the truck was hit, the front end of it was pushed toward the west; the rear of the truck was pushed to the east, and the right hind wheel was on the line which divided the 20 foot paved surface of the highway.

The defendant's wife testified that when the truck stopped she looked to the south and saw the plaintiff's car south of the highway sign which is a distance of 873 feet. The plaintiff was proceeding at a high rate of speed, and when within 15 to 20 feet of the truck his front wheels turned directly and came across in front of the truck. The truck, at the time, was on the west side of the center line of the highway, or on its proper portion of the highway. The defendant was driving at a speed of seven or eight miles per hour.

The plaintiff's version of the collision, according to his testimony, is in substance as follows: When he was 200 feet distant from the intersection he saw defendant, and the front wheels of the truck were on the highway. He blew his horn, believing the defendant would stop, and swerved to the left endeavoring to miss him, and if the defendant had stopped, he would have missed him. However, defendant proceeded on, and hit plaintiff's car on front fender with bumper of truck, pushing plaintiff's car over paved slab to west. There was no forward movement of eir car or truck reafter. The truck was going about five to ten miles per hour. Immediately after accident truck was headed almost exactly straight west into bank, across paved surface of highway. The front end of truck, bumper and grille were pushed against right front fender of plaintiff's car, and right front wheel of plaintiff's car was lying almost flat under truck. The endgate, or rear, of truck was not over a foot off pavement on east side. In or words, truck and plaintiff's car completely blocked highway and no one could get by, eir from north or south, without pulling completely off pavement on east side of highway.

After the accident the plaintiff examined skid marks made by the tires of his car...