Thrapp v. Meyers
| Decision Date | 08 June 1926 |
| Docket Number | 24171 |
| Citation | 209 N.W. 238,114 Neb. 689 |
| Parties | ECCE H. THRAPP, APPELLEE, v. ISAAC N. MEYERS, APPELLANT |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Lancaster county: JEFFERSON H BROADY, JUDGE. Affirmed.
AFFIRMED.
Peterson & Devoe, for appellant.
C. M Skiles and F. A. Peterson, contra.
Heard before MORRISSEY, C.J., ROSE, GOOD, THOMPSON, and EBERLY JJ., and REDICK, District Judge.
This action grows out of a collision between an automobile truck driven by the plaintiff and a Dodge touring car driven by the defendant, at an intersection of graded country roads. From a verdict and judgment for plaintiff defendant appeals.
For the purposes of the case the two roads may be considered of practically the same importance as highways. They were hard and dry, the day was clear and bright, and the collision took place about 9:30 in the morning. The intersection was about level and the two roads upon which the parties were traveling approached it on a slight decline, described by the witnesses as an incline down. The plaintiff testified that, as he approached the intersection from the west, he was traveling about 12 miles an hour, and at a point 8 or 10 rods west of the intersection he looked to the south along the intersecting road for a distance of about 30 or 40 rods across the corner and saw no automobile approaching, indicating that some trees to the west of the road may have prevented him from seeing defendant, and that he did not see defendant until just at the instant of the collision, which took place at a point about 10 or 12 feet east of the center of the intersection and a little south thereof; that defendant passed across in front of him like a streak; that the left front end of the truck caught the left rear wheel of defendant's car as it was passing, pulling and turning the truck to the northeast and upsetting it from left to right near the culvert at the northeast corner of the intersection, defendant's car continuing to the north, turning part way round and stopping in the ditch to the east of the road. Plaintiff further testified that he did not look again to the south, but while looking straight ahead could have seen defendant some distance from the intersection. Plaintiff and 7 or 8 disinterested witnesses testified that after the accident the defendant stated that when he first saw the plaintiff's truck defendant was going so fast that he could not stop and he thought he would shoot through. Plaintiff's truck was loaded with furniture about 12 feet high from the bed and represented a total weight of about 7 tons, and was provided with a cab containing glass and isinglass windows through which plaintiff could observe the road to his right.
The defendant's version of the accident is as follows: That he was proceeding toward and entering the intersection from the south, going at about 15 to 16 miles an hour; that he first saw the truck when he was 50 or 60 yards south of the intersection, at which time the truck was 80 or 90 yards west thereof, going at about 15 to 18 miles an hour; that he proceeded north without slowing down and had just entered the intersection when he glanced up and saw the truck approaching at about 25 miles an hour, at which time he was going so fast he could not stop and swerved his car about 7 feet to the east, put on a little more speed and attempted to pass in front of the truck, but was caught substantially in the manner described by the plaintiff. Defendant, however, states that plaintiff was driving about a foot north of the center of the road and that the collision took place in the northeast corner of the intersection. Defendant further testified that he could see the truck all the way, but would not say that he watched it all the time. Defendant denied that he stated to the plaintiff's witnesses that he was going so fast toward the intersection that he could not stop, but insisted that if he said anything of that nature it was that after entering the intersection he was going so fast he could not stop. The parties were the only eye-witnesses of the occurrence, but a large number of persons congregated within a short time after the accident, and there is considerable testimony tending to support the various claims of the parties as to the relative positions of the cars upon the highway near the intersection, as evidenced by an examination of their tracks, some of defendant's witnesses placing the truck about a foot north and those of plaintiff south of the center of the road, while it is practically conceded that the defendant's car at a little distance south of the intersection was traveling to the left of the center, but entered the intersection about on the crown of the road.
Upon this record defendant strenuously insists that his motion for a directed verdict in his favor at the close of the plaintiff's case, or a similar motion at the close of all the evidence, should have been sustained, and refusal of the district court to do so is assigned as error. The contention of defendant is that he had the right of way over the plaintiff, that it was the duty of the plaintiff to look in the direction of the defendant, that if he had done so at the proper time he would have seen the defendant in time to have slowed down and permitted the defendant to cross in front of plaintiff, and that plaintiff's failure to look or see defendant was more than slight negligence and therefore sufficient to prevent his recovery. Defendant requests the court to apply to automobiles approaching an intersection at right angles the same rule as applies to railway crossings, to wit, that it is the duty of a driver upon the highway approaching a railroad crossing to look and listen for trains at a point where he could see or hear a train approaching, and that his failure so to do is such...
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