Spomer v. Allied Electric & Fixture Company
| Decision Date | 07 November 1930 |
| Docket Number | 27421 |
| Citation | 232 N.W. 767,120 Neb. 399 |
| Parties | JOHN C. SPOMER, ADMINISTRATOR, APPELLEE, v. ALLIED ELECTRIC & FIXTURE COMPANY, APPELLANT |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Lancaster county: ELWOOD B CHAPPELL, JUDGE. Reversed.
REVERSED.
Syllabus by the Court.
While a municipal court may take notice of a city ordinance, proof of its existence is ordinarily required in courts of general jurisdiction.
" A driver of an automobile should have his car under such reasonable control as will enable him to avoid collision with other vehicles, assuming that the drivers thereof will exercise due care." Thrapp v. Meyers, 114 Neb 689, 209 N.W. 238, 47 A.L.R. 585; De Griselles v. Gans, 116 Neb. 835, 219 N.W. 235.
Reasonable control by drivers of motor vehicles is such as will enable them to avoid collision with other vehicles operated without negligence in streets and intersections, and with pedestrians in the exercise of due care.
In the operation of motor vehicles complete control such as will only prevent a collision by anticipation of negligent or illegal disregard of traffic regulations, in absence of notice, warning or knowledge, is not required by the laws of Nebraska.
The earnings of an unemancipated minor belong to his parents, but at common law a son is not legally bound to support them after he becomes of age.
The legal obligation of an adult child to support parents is limited to the conditions prescribed by statute, and cannot be enforced in an action against a third person.
Where contributory negligence is a controverted issue on which there is evidence on both sides in an action against defendant for causing the death of a minor by a wrongful act, the recovery, if any, should be diminshed in proportion to the extent of the contributory negligence, according to the statutory rule.
" The measure of damage in an action by the personal representative of a child, for the benefit of its par ents, to recover for wrongfully causing the death of such child, is the present worth in money of the contributions having a general monetary value of which the parents are shown by the evidence with reasonable certainty to have been deprived by the act causing the death, and those contributions that are only probable, or conjectural, may not be included in the amount of such damage." Fisher v. Trester, 119 Neb. 529, 229 N.W. 901.
Appeal from District Court, Lancaster County; Chappell, Judge.
Action by John C. Spomer, administrator of the estate of Edward John Spomer, deceased, against Allied Electric & Fixture Company. Judgment for plaintiff, and defendant appeals.
Reversed and remanded.
Sanden, Anderson, Laughlin & Gradwohl, for appellant.
Chambers & Holland and C. Russell Mattson, contra.
Heard before GOSS, C. J., ROSE, GOOD, THOMPSON, EBERLY and DAY, JJ., and REDICK, District Judge.
This is an action to recover damages in the sum of $ 20,000 for negligence resulting in the death of Edward John Spomer, a boy fifteen years of age. While riding west on a bicycle on F street in the city of Lincoln May 15, 1929, he was struck by a motor truck going south on Fourteenth street at the intersection of the two thoroughfares. As a result of the collision he died the next day. The truck belonged to defendant and was driven at the time by an employee named H. H. Hansen. John C. Spomer, the father of the boy, instituted the action as administrator.
The driver of the truck was charged by plaintiff with negligence in operating it at the high and unlawful speed of 35 miles an hour; in neglecting to signal his approach; in failing to keep between the center of the intersection and the curb line to his right as required by law; in not keeping a proper lookout; in failing to keep the truck under reasonable control; in driving in such reckless manner as to endanger life and property and interfere with lawful traffic.
Defendant denied plaintiff's charges of negligence, and pleaded that its driver exercised proper care; that Edward John Spomer was guilty of contributory negligence in riding his bicycle side by side with another bicycle rider in violation of a city ordinance; in failing to give defendant's driver the right of way; in omitting to keep a proper lookout; in riding in front of the truck and suddenly stopping after it swerved to the east in an attempt by the driver to avoid a collision. Defendant alleged also that the proximate cause of the accident was the negligence of the bicycle riders. The reply to the answer was a general denial.
Upon a trial of the issues the jury rendered a verdict in favor of plaintiff for $ 5,450. From a judgment therefor defendant appealed.
The assignments of error are directed to instructions and to the verdict as excessive. On the issues of negligence, contributory negligence and proximate cause the evidence is conflicting. In respect to these issues testimony on behalf of plaintiff tends to prove generally the allegations of the petition, while the evidence adduced by defendant tends to support the defenses pleaded in the answer.
In an instruction of which complaint is made, the trial court directed the jury, among other things, that the laws of Nebraska and the ordinances of Lincoln required the driver of the motor vehicle to have it "under complete control." The instruction is erroneous. There is no evidence of a city ordinance requiring the...
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