Stauffer v. School Dist. of Tecumseh

• Court: Nebraska Supreme Court
• Writing for the Court: HASTINGS; BOSLAUGH; SHANAHAN; WHITE
• Citation: Stauffer v. School Dist. of Tecumseh, 238 Neb. 594, 473 N.W.2d 392 (Neb. 1991)
• Decision Date: 12 July 1991
• Docket Number: No. 88-1011,88-1011
• Parties: , 69 Ed. Law Rep. 554 Richard L. STAUFFER, Personal Representative of the Estate of Theresa R. Stauffer, Deceased, Appellant, v. SCHOOL DISTRICT OF TECUMSEH, in the County of Johnson, in the State of Nebraska, Appellee.

Page 392

473 N.W.2d 392

238 Neb. 594, 69 Ed. Law Rep. 554

Richard L. STAUFFER, Personal Representative of the Estate of Theresa R. Stauffer, Deceased, Appellant, v. SCHOOL DISTRICT OF TECUMSEH, in the County of Johnson, in the State of Nebraska, Appellee.

No. 88-1011.

Supreme Court of Nebraska.

July 12, 1991.

Syllabus by the Court

1. Political Subdivisions Tort Claims Act: Appeal and Error. The findings of the trial court in an action under the Political Subdivisions Tort Claims Act have the effect of jury findings and will not be disturbed on appeal unless clearly wrong.

2. Trial: Evidence: Negligence: Juries. In a court's determination of the question of whether the evidence is sufficient to submit the issues of negligence and contributory negligence to the jury, a party is entitled to have all conflicts in the evidence resolved in his favor and the benefit of every reasonable inference that may be deduced from the evidence, and if reasonable minds might draw different conclusions from a set of facts thus resolved in favor of a party, the issues of negligence and contributory negligence are for a jury.

3. Trial: Evidence: Juries. Where there is a reasonable dispute as to what the physical facts show, the conclusions to be drawn therefrom are for the jury. The credibility of witnesses and the weight to be given their testimony are solely for the consideration of the jury.

4. Motor Vehicles: Highways: Right-of-Way: Negligence: Presumptions: Juries. When a motorist enters an intersection of two highways, he is obligated to look for approaching motor vehicles and to see those within that radius which denotes the limit of danger. If he fails to see a car which is favored over him under the rules of the road, he is guilty of contributory negligence sufficient to bar a recovery as a matter of law. If he fails to see an automobile not shown to be in a favored position, the presumption is that its driver will respect his right-of-way, and the question of his contributory negligence in proceeding to cross the intersection is a jury question.

5. Motor Vehicles: Highways: Right-of-Way: Negligence. The right-of-way which the driver of a vehicle is required to yield to the vehicle on the right is a qualified right-of-way. The driver on the right must exercise due care, may not proceed in disregard of the surrounding circumstances, and where necessary to avoid a collision may be required to yield the right-of-way. The fact that one may have the directional right-of-way does not permit him to proceed in utter disregard of traffic approaching from the left.

6. Motor Vehicles: Highways: Right-of-Way: Negligence. A driver approaching an unprotected intersection where he knows and can readily observe that his view is obstructed must do so at such a speed as will afford him a reasonable opportunity to make effective observations for cars approaching on the intersecting road and give him a reasonable opportunity to properly react to the situation he then observes or could observe.

T.J. Hallinan, Cobb, Hallinan & Ehrlich, P.C., Lincoln, for appellant.

Donald R. Witt and Michael A. England, Baylor, Evnen, Curtiss, Grimit & Witt, Lincoln, for appellee.

HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, SHANAHAN, GRANT, and FAHRNBRUCH, JJ.

BOSLAUGH, Justice.

This is an appeal in a wrongful death action brought under the Nebraska Political Subdivisions Tort Claims Act, Neb.Rev.Stat. §§ 13-901 et seq. (Reissue 1987).

The plaintiff and appellant herein, Richard L. Stauffer, the personal representative of the estate of Theresa R. Stauffer, deceased, brought this action against the School District of Tecumseh to recover for Theresa Stauffer's death in an intersectional collision with the school district's schoolbus. The collision occurred on September 25, 1986, at the intersection of two county roads about 1 mile north and 6 miles west of Tecumseh, Nebraska. The accident involved a pickup truck driven by Theresa Stauffer (hereinafter plaintiff's decedent) from the north into the intersection in a southerly direction, and a schoolbus driven into the intersection by the defendant's driver, Gary R. Peters, who was proceeding from the east to the west.

The schoolbus was a typical schoolbus painted yellow, 9 feet 6 inches tall and 22 feet 4 inches long.

In his petition, the plaintiff alleged that the defendant's schoolbus driver was negligent (1) in failing to maintain a proper lookout, (2) in failing to maintain reasonable control of the schoolbus, (3) in failing to yield the right-of-way, and (4) in driving at an excessive speed for the conditions, and that his negligence was the proximate cause of the wrongful death of the plaintiff's decedent. In its answer, the defendant admitted the accident occurred but alleged that the plaintiff's decedent was guilty of contributory negligence sufficient to bar any recovery because she (1) failed to maintain a proper lookout, (2) failed to yield the right-of-way to the defendant's schoolbus, (3) operated the pickup at a rate of speed greater than was reasonable and prudent under the conditions, and (4) failed to have her pickup under reasonable control.

At the conclusion of all the evidence the plaintiff moved for a directed verdict against the defendant, arguing that the defendant was negligent as a matter of law. Similarly, the defendant moved that the plaintiff's petition be dismissed because the evidence showed as a matter of law the plaintiff's decedent was contributorily negligent in a degree sufficient to bar any recovery. The trial court reserved ruling on these motions and eventually decided the case on its merits.

The trial court found that the defendant's schoolbus driver, Peters, was negligent in his failure to keep a proper lookout, failure to yield right-of-way, and excessive speed for the conditions, and that such negligence was one of the proximate causes of the accident. The court further found that plaintiff's decedent was contributorily negligent because of her failure to maintain a proper lookout and because she operated her pickup at an unreasonable rate of speed under the traffic conditions. The court concluded by holding that decedent's contributory negligence, when compared with the negligence of the defendant's driver, was more than slight and that the negligence of the defendant's driver, when compared with that of the decedent, was less than gross, and awarded judgment to the defendant.

Following the trial court's decision, the plaintiff filed motions for new trial and for judgment notwithstanding the verdict. Both motions were overruled. The plaintiff has appealed from the judgment for the defendant and from the denial of his motions.

The plaintiff's assignments of error may be consolidated into one. The plaintiff contends the trial court erred in finding that the plaintiff's decedent was guilty of contributory negligence sufficient to bar any recovery. This is essentially a finding of fact. The findings of the trial court in an action under the Political Subdivisions Tort Claims Act have the effect of jury findings and will not be disturbed on appeal unless clearly wrong. Kumar v. Douglas County, 234 Neb. 511, 452 N.W.2d 21 (1990); Ohnstad v. Omaha Public Sch. Dist. No. 1, 232 Neb. 788, 442 N.W.2d 859 (1989); Zeller v. County of Howard, 227 Neb. 667, 419 N.W.2d 654 (1988). Under this standard, we review the record and consider the evidence in the light most favorable to the defendant in order to determine whether the trial court was clearly wrong in its findings.

In this case there is no presumption that the plaintiff's decedent was exercising due care. Such a presumption obtains only when there is no substantial evidence as to care or want of care on the part of the deceased. When there is such evidence, the presumption has no place in the case. Bush v. James, 152 Neb. 189, 40 N.W.2d 667 (1950).

The presumption of due care arising out of the natural instinct of self-preservation is not evidence but a mere rule of law and obtains only in the absence of direct or circumstantial evidence one way or the other on the subject. When such evidence is produced, the presumption disappears and may no longer be considered. Anderson v. Nincehelser, 153 Neb. 329, 44 N.W.2d 518. (1950)

Omaha Nat. Bank v. Omaha P.P. Dist., 186 Neb. 6, 10-11, 180 N.W.2d 229, 232 (1970).

The record shows that the accident took place on September 25, 1986, about 1 mile north and 6 miles west of Tecumseh, at the intersection of two open and uncontrolled gravel roads. The collision occurred at about 7:15 a.m. on a clear, dry day. The plaintiff's decedent's vehicle, a 1983 Chevrolet S-10 pickup, was traveling in a southerly direction on a north-south minimum-maintenance road. The defendant's vehicle, a 1968 Chevrolet 36-passenger schoolbus, which was being driven by Peters, was westbound on an east-west gravel road with its headlights lighted. Both parties were familiar with the intersection.

The defendant's schoolbus driver, Peters, testified that on the east-west road about a quarter of a mile east of the intersection there is a small, gradual incline leading up to the intersection. Peters testified that he had accelerated slowly as he approached the intersection because of this hill and that his bus was traveling about 40 miles per hour as it entered the intersection. Peters saw the decedent's vehicle a "[s]plit second" before the collision. At that time his bus was at the fence line east of the intersection. He testified that the decedent's vehicle was near the fence line north of the intersection when he first saw it. The vehicles collided near the center of the intersection. The front of the defendant's schoolbus struck the pickup at the driver's door or shortly behind it.

Photographs taken by Keith Rodaway, a Nebraska state patrolman, on the day of the accident and received in evidence, show scattered trees and bushes to the north and east of the intersection. The...