Thompsen v. Miller
| Citation | 129 N.W.2d 498,177 Neb. 530 |
| Decision Date | 03 July 1964 |
| Docket Number | No. 35695,35695 |
| Parties | Carl THOMPSEN, Appellant, v. Janice MILLER, Appellee. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. In determining the sufficiency of the evidence to sustain the judgment, it must be considered in the light most favorable to the successful party.
2. Conditions affecting the visibility of a motorist impose upon a driver the duty to exercise a degree of care commensurate with the existing circumstances.
3. An error of law occurring at the trial will not ordinarily be considered by this court unless it has been properly presented to the trial court and properly preserved.
4. An error in the rejection of evidence relating to damages in a negligence action is not prejudicial where the jury finds that the plaintiff had no cause of action against the defendant.
Richard L. Huber, Grand Island, for appellant.
Luebs, Elson, Tracy & Huebner, Grand Island, for appellee.
Heard before WHITE, C. J., and CARTER, MESSMORE, YEAGER, SPENCER, BOSLAUGH, and BROWER, JJ.
This is an action for damages arising out of an automobile accident brought by Carl Thompsen as plaintiff. The jury returned a verdict for the defendant, Janice Miller. The plaintiff's motion for new trial was overruled and he has appealed.
The plaintiff's assignments of error are that the verdict is contrary to the evidence and the law; that the trial court should have instructed the jury that the defendant was negligent as a matter of law; and that the trial court erred in striking the plaintiff's testimony concerning damages for loss of use of his automobile.
In determining the sufficiency of the evidence to sustain the judgment, it must be considered in the light most favorable to the successful party. Enterprise Co., Inc. v. Sanitary Dist. No. One, 176 Neb. 271, 125 N.W.2d 712. Every controverted fact must be resolved in his favor and he is entitled to the benefit of every inference that can reasonably be deduced from the evidence.
The accident occurred at about 8 p. m., on August 8, 1959, at an intersection of county roads in York County, Nebraska. The intersection is approximately 5 miles west of Cordova, Nebraska, and approximately 5 miles north of Exeter, Nebraska. The plaintiff was driving his 1957 Buick sedan automobile west from Cordova, Nebraska. The defendant was driving a Chevrolet automobile north from Exeter, Nebraska.
Both roads are graveled and are wide enough to accommodate two lanes of traffic. There are no stop signs or other traffic control signs at the intersection. The intersection is level and there was nothing north or west of the intersection to obstruct the vision of the parties as they approached it. There was a cornfield south and east of the intersection. The corn was planted up to the edge of the road ditch, was 6 or 7 feet tall, and obstructed the vision of the parties to the south and east as they approached the intersection. The weather was clear and the road was dry.
The plaintiff testified that he was driving at not more than 40 miles per hour and as he approached the intersection he reduced his speed; that he was looking to the south and when his automobile was approximately two car lengths from the center of the intersection he saw the defendant approaching the intersection from the south; that the speed of his car at that time was about 25 miles per hour; that the defendant was then four or five car lengths south of the intersection and traveling at a much faster rate of speed; and that the plaintiff applied his brakes and his car slid forward to the point of impact.
The defendant testified that she was driving about 40 miles per hour and reduced her speed to 35 or 30 miles per hour as she approached the intersection; that when she was three or four car lengths south of the intersection she looked to the right and saw the cornfield; that she did not look to the right again until the front of her car was approaching the center of the intersection; that she then looked to the right and saw the plaintiff one or two car lengths east of the intersection; and that she continued to move forward and did not apply her brakes, speed up, or turn her wheels before the impact.
The impact occurred near the center of the intersection or slightly northeast of the center. The front of the plaintiff's automobile collided with the right side of the automobile operated by the defendant near its center. The plaintiff's automobile...
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...in the light most favorable to the party obtaining the verdict. See, Robison v. Troy Laundry, 105 Neb. 267, 180 N.W. 43; Thompsen v. Miller, 177 Neb. 530, 129 N.W.2d 498. In jury cases, jurors are the sole judges of the credibility of witnesses and of the weight to be given their testimony.......
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