Trumbley v. Moore
| Decision Date | 18 November 1949 |
| Docket Number | 32639. |
| Citation | 39 N.W.2d 613,151 Neb. 780 |
| Parties | TRUMBLEY v. MOORE et al. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
1. A pedestrian crossing a street at a place other than a street intersection or crosswalk in direct violation of a city ordinance is required to keep a constant lookout for his own safety in all directions of anticipated danger.
2. Where a pedestrian crossing a street between intersections in violation of a city ordinance looks but does not see an approaching automobile, or sees it and misjudges its speed or its distance from him, or for some other reason concludes that he can avoid injury to himself, it usually presents a case for a jury.
3. However, unless some reasonable excuse is shown which is consistent with the facts established, one who is obligated to keep a lookout for vehicles or persons favored over him is required to see that which is in plain sight. Where he fails to do so, his negligence is sufficient to defeat a recovery.
4. A person who is himself negligent may not recover under the doctrine of the last clear chance where his negligence is active and continuing to the very time of the accident. Such a situation involves questions of comparative negligence and not those of the last clear chance doctrine.
5. A person with impaired vision is required to use greater care for his own safety than one not so afflicted in order to attain the standard of care which the law requires.
Davis Stubbs & Healey, Lincoln, Cline, Williams & Wright Lincoln, for appellants.
Lloyd E. Chapman, Lincoln, for appellee.
Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL WENKE, and BOSLAUGH, JJ.
This is an action for the recovery of damages for personal injuries resulting to plaintiff when he was struck by an automobile driven by the defendant Franklin C. Hamer. The jury returned a verdict for the plaintiff against both defendants Hamer and Moore, and each defendant appeals.
The plaintiff was walking across Sixteenth Street between O and N Streets in Lincoln at the time he was struck by the Hamer car. The plaintiff was not using a pedestrian's crosswalk, but was jaywalking across Sixteenth Street from a point just south of the alley on the west side of the street in a diagonal direction to the southeast.
The evidence shows that the traveled portion of the street was 50 feet in width; that it was paved, curbed, and guttered; and that the center of the street was marked with a center line. Plaintiff says that he started across Sixteenth Street midway in the block at a pace described by him as an ordinary gait. He testifies that he looked both to the north and to the south three or four times before he reached the point where the accident occurred and that he did not see any car approaching from the north. Plaintiff testifies to a congenital defect of vision which materially reduced the efficiency of his left eye. Plaintiff testifies that as he arrived in the center of the street he was struck from the north by the Hamer car and knocked to the pavement, thereby suffering the injuries for which suit is brought. The record shows that at the time of the accident the left wheels of the Hamer car were approximately one foot to the east of the center line of the street. The evidence shows that the plaintiff was struck by the right fender and headlight of the Hamer car. Plaintiff was lying on the west side of the center line after the accident. Plaintiff testifies that he was on the east side of the center line at the time he was struck. All eye witnesses and the physical facts demonstrate, however, that he was west of the center line of the street when he was hit, although the left wheels of the Hamer car were east of the center line.
It is the contention of the plaintiff that the defendant Byron K. Moore was jointly liable for the injuries sustained by the plaintiff. In this respect the evience shows that Moore was engaged in the business of selling automotive parts. His place of business was on the west side of Sixteenth Street south of the alley between O and N Streets. In front of his place of business and immediately south of the alley there was a curb cut and driveway into his place of business. It was the custom of Moore to drive his automobile into this drive and park his car inside the curb line of Sixteenth Street.
On the date of the accident and shortly before its occurrence Moore backed his car into the street and headed north on the left side of the street, intending to cross to the east side thereof as soon as traffic permitted. Defendant Hamer testifies that as Moore came north, he, Hamer, was obliged to turn across the center line to avoid him and this accounts for having the left wheels of his car over the center line at the time of the collision. The evidence establishes that the Hamer car traveled not to exceed four feet after the accident. There is no other evidence of speed. There is no evidence that Hamer did not keep a proper lookout or that he did not have his car under control other than the fact he was one foot over the center line of the street.
The point of the accident was about 15 feet south of the south side of the alley. Hamer testifies that he had driven about ten feet with his left wheels to the east of the center line at the time of the accident. He testifies also that he was watching a bus approaching from the south which was traveling near the center line of the street. Hamer testifies that he did not sound his horn for the reason that plaintiff stepped in front of his car so suddenly that he had no opportunity to do so.
Moore testifies that as he turned his car north, he was traveling on the left-hand side of the street with the intention of crossing to the east side as soon as traffic permitted. He proceeded 30 to 40 feet north of the alley when he heard the collision. He then backed his car into his driveway, a distance of 55 or 60 feet.
Plaintiff testifies that as he reached the west curb of Sixteenth Street the Moore car was a little past the south edge of the alley headed north. He says he looked north several times before he reached the center of the street and did not see the Hamer car. When he reached the center of the street he again looked north and saw the Moore car approximately half way between the alley and O Street. He saw no car between himself and the Moore car. The evidence conclusively establishes that the Hamer car was south of the Moore car when plaintiff last looked to the north. The Hamer car was traveling at a reasonable rate of speed immediately prior to the accident, otherwise it could not have been stopped within a distance of four feet. There is no evidence in the record that Hamer was driving at an unreasonable rate of speed. It was utterly impossible for the Hamer car to travel from the point where plaintiff last saw the Moore car and strike the plaintiff in the manner testified to by him. The...
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