Thomas v. Rasmussen
| Decision Date | 07 July 1921 |
| Docket Number | 21604 |
| Citation | 184 N.W. 104,106 Neb. 442 |
| Parties | ROSA MAE THOMAS, APPELLEE, v. LLOYD RASMUSSEN ET AL., APPELLANTS |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Dawson county: HANSON M. GRIMES JUDGE. Reversed.
REVERSED.
I. J Nisley and Cook & Cook, for appellants.
Hainer Craft & Edgerton and T. M. Hewitt, contra.
Heard before LETTON, DAY and DEAN, JJ., CLEMENTS and MORNING, District Judges.
This is an action to recover damages for an injury to plaintiff's person sustained in an automobile accident, which, it is alleged, was caused by the negligence of defendants. From a verdict and judgment for plaintiff, defendants appeal.
The following facts are established by the pleadings and undisputed evidence, to wit: On September 11, 1919, at about 10 o'clock p. m., the plaintiff, at the invitation of her brother-in-law, Fred Troxel, was riding in a Buick automobile owned by said Troxel and being driven by him westward on the Lincoln highway about one mile east of Cozad, Nebraska. At that place said highway extends east and west, and is a graded road having two traveled tracks about three or four feet apart. Said automobile was then traveling in the left-hand or south one of said tracks at a speed of about 20 miles an hour. The defendant, Ferdinand Pederson, driving a Dodge automobile, and the defendant, Lloyd Rasmussen, driving a Ford, were also traveling westward on said highway at that time and place, the Dodge being a short distance ahead of the Ford, at a speed estimated by plaintiff's witnesses at from 30 to 35 miles an hour and by defendants' witnesses at from 20 to 30 miles an hour. Pederson passed said Buick car on the north and right-hand side without in any manner touching it. Rasmussen also attempted to pass on the north side, but in doing so the left side of his Ford, near the rear, came in contact with the bumper of the Buick, the Buick car tipped over and plaintiff was thereby injured. When they overtook the Buick car neither of the defendants indicated to its driver by sound or call that he desired to pass.
The plaintiff alleged, and introduced evidence to prove, that at the time of the accident defendants were racing; that defendant Rasmussen, while passing the Buick car on the north side, turned to the left and attempted to run in ahead of it at a less distance than 30 feet therefrom, and in so doing collided therewith and thereby overturned it. Defendants deny this, and contend, and have introduced evidence to prove, that Rasmussen did not turn to the left or run into the Buick car, but that said car was driven into the rear of his Ford while he was traveling in the north track.
At the close of plaintiff's case, and after all evidence was in and both parties had rested, each of the defendants moved the court to direct a verdict in his favor, for the reason that the evidence is not sufficient to sustain a verdict against him, which motions were overruled, and each defendant contends that said ruling against him was erroneous.
A careful reading of the record shows that the evidence introduced by plaintiff supports her allegations that defendant Rasmussen, in attempting to pass on the right-hand side, negligently turned his Ford to the left and drove it against the car in which plaintiff was riding, thereby overturning it and injuring plaintiff. This evidence, if believed by the jury, which it evidently was, fully justifies and sustains the verdict against said defendant Rasmussen. Therefore the trial court did not err in overruling his motion for a directed verdict.
Where a person is injured by the racing of two or more other parties on a public highway, all engaged in the race are liable, although only one of the vehicles came in contact with the injured person or the vehicle in which he is riding. Berry, Automobiles (2d ed.) sec. 184. Plaintiff seeks to hold defendant Pederson liable under this rule. As his automobile did not come in contact with the Troxel car, Peterson cannot be held liable, unless plaintiff's allegation that defendants were racing is proved by a preponderance of the evidence; and this question was raised by his motion for a directed verdict.
Racing, as defined by Webster, is a running in competition, a contest of speed. Is there sufficient evidence to support a finding that defendants were running in competition or engaged in a contest of speed? The only competent evidence in the record bearing upon this question shows that defendants were driving on a well-traveled highway, outside of a city or village, at a speed variously estimated at from 20 to 35 miles an hour; that both were driving on the same and right side of the road in the same track, Rasmussen a short distance behind Pederson. It is true that several of plaintiff's witnesses said defendants were racing, but this assertion was a mere conclusion. None of said witnesses saw either of defendants or knew or pretended to know how they were driving until they were within a short distance of the place of the accident; and the only facts or circumstances disclosed by the record on which such conclusion was based are as above stated. The defendant Pederson testified that he did not try to prevent any car from passing him; that when he passed the Buick he did not know that there was another car behind him and did not know that Rasmussen was in the neighborhood until after the accident. Defendant Rasmussen testified that he drove behind Pederson's car several miles and made no effort to pass same; that there was no rivalry as to who could drive the faster. We therefore feel compelled to hold that there is not sufficient evidence to sustain a verdict against the defendant Pederson, and that the court erred in overruling his motion for a directed verdict.
In defendant's brief it is argued that the trial court erred in giving each of instructions Nos. 1, 7, 8, 9, 12, 13, 14 and 18. The objections urged against instructions Nos. 1, 7 and 9 will be considered together.
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