Thomas v. Owens

• Decision Date: 04 December 1959
• Docket Number: No. 34635,34635
• Citation: 99 N.W.2d 605,169 Neb. 369
• Parties: Nancy THOMAS, Appellant, v. Cecil OWENS, Appellee.
• Court: Nebraska Supreme Court

Page 605

99 N.W.2d 605

169 Neb. 369

Nancy THOMAS, Appellant, v. Cecil OWENS, Appellee.

No. 34635.

Supreme Court of Nebraska.

Dec. 4, 1959.

Syllabus by the Court

1. A motion for directed verdict or its equivalent must, for the purpose of decision thereon, be treated as an admission of the truth of all competent evidence submitted on behalf of the party against whom the motion is directed, and such party is entitled to have every controverted fact resolved in his favor, and to have the benefit of every inference that can reasonably be deduced from the evidence.

2. Before the evidence in a case is submitted to a jury, there is a preliminary question for the court to decide, when properly raised, not whether there is literally no evidence, but whether there is any upon which a jury can properly proceed to find a verdict for the party upon whom the burden of proof is imposed.

3. Where the facts adduced to sustain an issue are such that reasonable minds can draw but one conclusion therefrom, it is the duty of the court to decide the question, as a matter of law, rather than submit it to a jury for determination.

4. The operator of a motor vehicle on a highway who would otherwise have the right-of-way under statutory regulations if he operates it at a lawful rate of speed forfeits that right-of-way if he operates it at an unlawful rate.

5. The driver of a motor vehicle has the duty to keep a proper lookout and watch where he is driving even though he is rightfully on the highway and has the right-of-way or is driving on the side of the highway where he has a lawful right to be.

6. The failure of the driver of a motor vehicle, upon approaching an intersection, to look in the direction from which another vehicle is approaching, where, by looking, he could see and avoid the collision that resulted, is more than slight negligence, as a matter of law, and defeats recovery.

7. When one, being in a place of safety, sees or could have seen the approach of a motor vehicle in close proximity to him and suddenly moves from the place of safety into the path of such vehicle and is struck, his own conduct constitutes contributory negligence more than slight in degree, as a matter of law, and precludes recovery.

8. The duty of the driver of a motor vehicle to look for vehicles approaching on the highway implies the duty to see what is in plain sight.

9. What of ordinary care, and not knowledge of the danger, is the test of contributory negligence.

Martin A. Cannon, Omaha, for appellant.

Story, Pilcher & Howard, Omaha, for appellee.

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

YEAGER, Justice.

This is an action for damages for personal injuries by Nancy Thomas, plaintiff and appellant, against Cecil Owens, defendant and appellee. The case was tried and at the conclusion of the evidence a motion was made by the defendant in the alternative for a directed verdict in his favor or for dismissal of the action. The motion for dismissal was sustained by the order of the court. A motion for new trial was duly filed. This motion was overruled. From the orders dismissing the action and overruling the motion for new trial the plaintiff has appealed.

The action is based on an accidental collision between an automobile operated on a highway or highways in Omaha, Douglas County, Nebraska, by the plaintiff, and one owned and operated by the defendant.

On its face the order on the motion for dismissal was rendered either on the ground that the evidence disclosed that the plaintiff was, as a matter of law, guilty of acts which proximately caused the accident and her claimed injury and damage, or that she was guilty of contributory negligence which proximately contributed to the accident in a degree which likewise as a matter of law would defeat a right of recovery. Obviously from an examination of the bill of exceptions it was sustained on the latter of the two grounds, since it may not well be said as a matter of law that the defendant was free from negligence in the premises. The consideration of the case herein will be thus limited.

The brief of appellant contains as ground for reversal but one assignment of error. It is: 'The trial court erred in sustaining defendant's motion and in refusing to submit the case to a jury for determination.'

The determination of this question must be made in the light of the following rules: 'A motion for directed verdict or its equivalent must, for purpose of decision thereon, be treated as an admission of the truth of all competent evidence submitted on behalf of the party against whom the motion is directed. Such party is entitled to have every controverted fact resolved in his favor and to have the benefit of every inference that can reasonably be deduced form the evidence.' Davis v. Spindler, 156 Neb. 276, 56 N.W.2d 107, 108. See, also, Kepler v. Chicago, St. P., M. & O. R. Co., 111 Neb. 273, 196 N.W. 161; Morse v. Gray, 166 Neb. 557, 89 N.W.2d 842.

'In every case, before the evidence is submitted to the jury, there is a preliminary question for the court to decide, when properly raised, not whether there is literally no evidence, but whether there is any upon which a jury can properly proceed to find a verdict for the party producing it, upon whom the burden of proof is imposed.' Krichau v. Chicago, B. & Q. R. Co., 150 Neb. 498, 34 N.W.2d 899. See, also, Coyle v. Stopak, 165 Neb. 594, 86 N.W.2d 758; Morse v. Gray, supra.

'Where the facts adduced to sustain an issue are such that rasonable minds can draw but one conclusion therefrom, it is the duty of the court to decide the question, as a matter of law, rather than submit it to a jury for determination.' Corbitt v. Omaha Transit Co., 162 Neb. 598, 77 N.W.2d 144, 145. See, also, McIntosh v. Union Pac. R. Co., 146 Neb. 844, 22 N.W.2d 179; Allen v. Kavanaugh, 160 Neb. 645, 71 N.W.2d 119.

The collision which is the basis of this action took place in the early afternoon on May 20, 1957, somewhere in the southeast quadrant of what is known as the intersection of Seventy-second and Dodge Streets in Omaha, Nebraska. Dodge Street extends east and west and is a main highway passing through the city. It has three direct traffic lanes leading westward into the intersection and two on westward out of it. It has three direct lanes leading into the intersection from the west and two leading out to the east. There is a narrow island within and to the south edge of the center lane of Dodge Street to the east of the intersection and a like island within and to the north edge of the same lane west of the intersection. Seventy-second Street extends north and south through the intersection. From the north, two lanes lead into the intersection. Neither of these is obstructed. Two lanes lead out to the north. However, located in the inner of the two lanes and commencing a short distance to the north is an island the width of the lane and extending northward. From the south two lanes enter and two leave the intersection. Between the two inner lanes is an island which at its north end is about the same width as a regular lane. It starts about 24 feet back from the intersection and extends southward about 300 feet. It becomes gradually narrower as it extends southward. At each corner of the intersection is an island. Each fits into the corner outside the outer lines of the outside driving lanes going in opposite directions. Outside of these islands are right-turn lanes which after passing the islands parallel the outside driving lanes. All lanes are 12 feet in width. An automobile coming from the north on Seventy-second Street to turn east into Dodge Street from the inner southbound lane on Seventy-second Street would in passage have to cross the three westbound lanes on Dodge Street and the two northbound lanes of Seventy-second Street. About all of this three can be no dispute since it is taken from a plat in evidence, the correctness of which has been stipulated.

The plaintiff testified in substance, which testimony with its reasonable inferences must for the purposes of this case be accepted as true, that she was operating a Buick automobile in a southerly direction on Seventy-second Street and as she approached the intersection of Dodge Street she slowed down almost to a stop and then moved into the intersection at a speed of about 5 miles an hour; that as she approached she saw another automobile waiting next to the island in the inside northbound lane to make a left turn into Dodge Street; that she was...