Whitaker v. Keogh
| Decision Date | 26 May 1944 |
| Docket Number | 31750. |
| Citation | 14 N.W.2d 596,144 Neb. 790 |
| Parties | WHITAKER v. KEOGH. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
1. The driver of an automobile entering an intersection of two streets or highways is obligated to look for approaching cars and to see those within that radius which denotes the limit of danger.
2. If the driver of an automobile entering an intersection looks for approaching vehicles but fails to see one which is favored over him under the rules of the road, he is guilty of contributory negligence sufficient to bar a recovery as a matter of law.
3. When the driver of an automobile entering an intersection looks but fails to see an approaching automobile not shown to be in a favored position, the presumption is that the driver of the approaching automobile will respect his right of way and the question of his contributory negligence in proceeding to cross the intersection is a jury question.
4. Where the operator of an automobile about to enter an intersection sees an approaching car and tests an obvious danger by moving from a place of safety into the path of the on-coming vehicle and is struck, he is guilty of contributory negligence sufficient to bar a recovery as a matter of law whether he is driving the favored car or not.
5. Where an automobile proceeding across a street intersection had passed the center of the intersecting street and was struck by a car approaching from its left, and it appears that no collision would have occurred if the approaching car had proceeded on its right-hand side, no justification being shown for the approaching car being to the left of the center of the street, any negligence of the driver of the first car in failing to see the approach of the second is not a proximate cause of the accident.
6. Whatever an agent or employee does in the lawful exercise of his authority is imputable to the principal, and where the acts of an agent or employee will bind the principal, his representations, declarations and admissions respecting the subject matter will also bind him, if made at the same time and constitute a part of the same transaction.
Emmet S. Brumbaugh and Harry W. Whitaker, Jr., both of Omaha, for appellant.
Kennedy Holland, DeLacy & Svoboda, of Omaha, for appellee.
Heard before SIMMONS, C. J., PAINE, CARTER, MESSMORE, YEAGER, and WENKE JJ.
This is an action to recover damages for personal injuries sustained in an automobile accident. At the close of plaintiff's evidence the trial court directed a verdict for the defendant and dismissed the action. The plaintiff appeals.
The record shows that on November 27, 1940, the plaintiff, Mary G. Whitaker, was traveling east on Chicago street in the city of Omaha and as she was passing across 49th street she was struck by the car owned by Mary A. Keogh, now deceased, which was being driven at the time by her chauffeur in the course of his employment. The evidence of plaintiff is that as she approached the intersection of Chicago and 49th streets she looked north at a point just short of the west curb line of 49th street, that the car was then in second gear and proceeding at a speed of eight to ten miles an hour, that she could see for half a block north at that time and that no car was in sight. She testifies that she then looked south and, seeing no car approaching from that direction, proceeded into the intersection. Her car was struck between the door and front fender on the left side. Plaintiff's evidence is that she was on the street car track when struck and that the rear of the car extended about two feet over the east rail of the track after the collision occurred. She testifies that she was 61 years of age, had driven a car for 26 years, and had good eyesight. She also testifies that she did not see the car until the very moment of the collision. That she sustained injuries in the accident is not questioned. There is other evidence in the record to the effect that 49th street was 29 feet wide from curb line to curb line and that the street car track was in the center of the street, each rail being 12 feet from its adjacent curb. Other evidence as to the location of trees and other obstructions indicates that plaintiff's view was unobstructed to the north for considerably more than half a block. The damage to plaintiff's car indicates that it was struck at about the point to which plaintiff testified. Upon this evidence the trial court directed a verdict for the defendant.
In the consideration of the case we are obliged to adhere to the rule that in reviewing an order sustaining a motion for a directed verdict at the close of plaintiff's evidence we will assume the existence of every material fact which plaintiff's evidence tends to establish and all logical inferences deducible therefrom.
It is the contention of the defendant that plaintiff, under the evidence adduced, has shown herself to be guilty of contributory negligence in such degree as to bar recovery. The particular rule relied upon is that it is the duty of the driver of a vehicle about to enter a street intersection to look for other vehicles entering the same intersection and that the duty to look implies the duty to see that which was in plain sight, unless some excuse for not seeing is shown. The contention of the defendant infers a duty on the part of one entering an intersection, not only to see all approaching cars within the range of his vision, but also a duty to take the measures necessary to avoid a collision, irrespective of the negligence of the driver of such an approaching car. Such a rule places an unprecedented burden upon one about to enter a highway or street intersection.
This court has held that the failure of the driver of an automobile upon approaching an intersection, to look for vehicles approaching the same intersection, where, by looking, a collision could be avoided, constitutes negligence more than slight as a matter of law and operates to defeat a recovery. Bergendahl v. Rabeler, 133 Neb. 699, 276 N.W. 673; Cuevas v. Yellow Cab & Baggage Co., 141 Neb. 662, 4 N.W.2d 790. But this rule is subject to certain limitations. It was not intended to make a person entering a street intersection an insurer...
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...We believe the rule approved in Yost v. Yost, 81 S.D. 588, 592, 139 N.W.2d 238, 240 (1965) applies here. See also Whitaker v. Keogh, 144 Neb. 790, 14 N.W.2d 596 (1944). Defendant had no right-of-way for the reasons we have indicated, and the intersection was thus not "protected" at the time......
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...makes a laughing stock of court methods." 4 Wigmore on Evidence, 3d Edition, page 121, Note 2. In the recent case of Whitaker v. Keogh, 144 Neb. 790, 14 N.W.2d 596, it was held that a statement made by an agent immediately after an automobile collision should have been received in evidence,......
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