Tate v. Borgman

Decision Date07 November 1958
Docket NumberNo. 34415,34415
Citation167 Neb. 299,92 N.W.2d 697
PartiesVirginia A. TATE, Administratrix of the Estate of Wenzl J. Seidl, deceased, Appellant, v. Donna BORGMAN, Appellee.
CourtNebraska Supreme Court

Syllabus by the Court.

1. A qualified expert, upon laying a proper foundation, may give his opinion as to the speed of an automobile, based on the length of skid marks made by it when brakes were applied.

2. Various factors, such as skid marks, distance traveled after impact, and force of impact, constitute pertinent evidence in arriving at an estimate of the rate of speed of an automobile.

3. An allegation of negligence of a a specific number of miles per hour as the speed of an automobile as constituting excessive speed does not limit the pleader to proof of that speed. He may prove a lesser rate as negligence.

4. The lawfulness of the speed of an automobile within the prima facie limits fixed is determined by the further test of whether the speed was greater than was reasonable and prudent under the conditions then existing.

5. One is required only to have his automobile under such reasonable control as to be able to avoid a collision with other vehicles whose drivers exercise due care. Complete control which is such as will prevent collision by the anticipation of negligence on the part of another in the absence of warning or knowledge is not required.

6. Instructions must be considered and construed together, and if they are not sufficiently specific in some respects, it is the duty of counsel to offer requests for instructions that will supply the omission and, unless that is done, the judgment will not ordinarily be reversed for such defects.

7. A supplemental instruction is sufficient if it contains a correct statement when considered in connection with the main charge.

Chambers, Holland, Dudgeon & Hastings, Healey, Davies, Wilson & Barlow, L. Kenneth Cobb, Lincoln, for appellant.

Marti, O'Gara, Dalton & Sheldon, Lincoln, for appellee.

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

SIMMONS, Chief Justice.

This is an action for damages arising from an automobile collision which occurred February 10, 1955, between a taxicab driven by Wenzl J. Seidl and a car driven by Donna Borgman. Seidl sued for personal injury and property damage. He died February 11, 1956. The action was revived in the name of the administratrix, and a second cause of action alleged on the basis that death was the result of the injuries following the accident.

The defendant cross-petitioned for personal injury and property damage. Issues were made and trial was had resulting in a verdict and judgment for the defendant.

Plaintiff appeals, assigning as error the failure of the trial court to submit the issue of excessive speed of defendant's automobile to the jury; in striking the testimony of an expert witness regarding reaction time and speed as shown by skid marks; and in the giving of three instructions.

We reverse the judgment and remand the cause for further proceedings.

The accident occurred on West 'O' Street about dusk at 5:30 p. m. At the point of the accident West 'O' Street is a four-lane highway divided by traffic islands. At the point of the accident there is a 65-foot opening between the traffic islands to permit cross traffic. Immediately to the north of this opening and on the north side of the outer westbound lane is a driveway opening into the grounds of a garage, called herein the west drive. To the east and north of that is the garage. There is then a driveway leading to the garage called the east drive, and farther east of that is a second drive leading to a motor court. The center of this drive is 67 feet east from the center of the east drive.

The plaintiff's evidence is to the effect that Mr. Seidl had driven into the garage areaway through the west drive, had unloaded a passenger at the garage, and when last seen was in the east drive turning west. Plaintiff's contention is that Seidl drove west on the highway to the cross traffic opening and was making a left turn into the cross traffic lane when defendant's car ran into his taxicab.

Defendant's evidence is that she was driving west on 'O' Street at about 35 or 40 miles per hour when she came up behind a slow-moving westbound car in the outer lane, turned to pass it, and when alongside she saw the Seidl cab pull 'right straight across' out of the west drive. There is ample evidence in the record that at that time the two cars were approximately 150 feet apart and that the distance between them was closed by the movements of the defendant's car. Defendant testified that it' (the cab) was so close 'I didn't have time enough to stop.' Defendant also testified that 'just before' she applied her brakes she 'imagined' she was traveling about 35 to 40 miles per hour. Defendant further testified that she had turned a little toward the island when the collision occurred.

The undisputed evidence is that the defendant's car skidded a distance of 61 feet before the impact. The evidence also is that the damage to defendant's car occurred on the right front fender, light, and grill, causing $550 damage. The cab was hit with the greater impact on the left rear door, pushing it in. The cab was pushed sideways a distance of 10 feet and came to rest in a north and south position across the inner westbound lane and a line between the traffic islands. Defendant's car stopped almost at the point of impact.

Defendant further testified that she was thrown forward by the impact; her mouth hit the steering wheel; her teeth cut through her lip; one knee hit the ignition key and one hit the hand brake, bending both key and brake; her head hit the steering wheel; and her shoulder hit the door, all causing serious injuries.

The evidence is that the pavement was concrete, as distinguished from black-top, in 'normal' condition and free of ice or snow. There is evidence of some gravel on the pavement alongside the traffic island. Plaintiff offered an expert witness on the questions of speed as shown by skid marks and speed as shown by reaction time. The witness testified that he had been a police officer engaged in traffic matters for 10 years or more; that he had had specialized training at Northwestern University in determining stopping distances of cars at various speeds; that he had made experiments testing the formula for estimating speed from skid marks; that his experiments showed the formula to be true; that the type of a car makes no difference; that the weight of a car makes no difference; that the grade and condition of the pavement have to be considered; that the condition of the tires on good pavement makes no appreciable difference; and that the type of brakes makes no difference after the wheels are sliding. He testified that he was familiar with the surface of the West 'O' Street pavement; that he was assuming it was dry; that it had a 1 percent uphill grade; and that he assumed the condition of the pavement to be as shown in the pictures in evidence. On that foundation he was allowed to testify as to stopping time and reaction time.

The witness testified that a car 'at that particular location' traveling at 35 miles per hour should slide approximately 59 feet; that at 40 miles per hour the slide should approximate 77 feet; that at 45 miles per hour the slide should be in excess of 95 feet; that at 50 miles per hour the slide should be 110 feet to 11i feet; and that at 60 miles per hour the slide should be approximately 117 feet. From this evidence, considering the 61 feet of skid marks before the impact, the distance of 10 feet the cab was shoved west when in a sidewise position, the damage to the cab and car, and the force with which defendant was thrown about the car, it is obvious that the jury could property have inferred that defendant's speed was well in excess of the 40 miles per hour she testified to when the brakes took hold and locked the wheels in skid position.

The witness also testified that by reaction time he meant the time it takes a driver, after he realizes a hazard exists, to take his foot from the accelerator and start applying the brake. He testified that, based on experiments conducted, the reaction time varied from slightly over half a second to a second and that the reaction time for the average person is recognized to be three-quarters of a second. He testified that the average person's reaction time with a car going at 35 miles per hour would be 38 feet; at 40 miles per hour about 44 feet; at 45 miles per hour about 49 feet; at 50 miles per hour about 55 feet; and at 60 miles per hour the reaction time would be about 66 feet. Now remembering that the jury could have found a possible reaction time here of about 90 feet of travel, it is obvious that the jury could have found that the defendant's speed was well in excess of the 35 to 40 miles per hour she 'imagined' she was going when danger became apparent.

After the above evidence had been given to the jury the witness was then asked what he regarded the condition of the roadway was from the photographs in evidence. He replied that the pictures did not tell him too much, and that he was going more on his personal knowledge. The court, then, on motion of the defendant, struck all of the above recited testimony from the record and instructed the jury not to consider it.

Plaintiff assigns the exclusion of the evidence as error. Defendant argues here that it was properly excluded for lack of foundation.

Patently the testimony of the witness as to reaction time could not have been involved in the statement of the witness above recited. We see no basis for rejecting the testimony as to reaction time because of lack of foundation. It was ample.

We have held: A qualified expert, upon laying a proper foundation, may give his opinion as to the speed of an automobile, based on the length of skid marks made by it when brakes...

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