Wolfe v. Mendel

• Decision Date: 05 July 1957
• Docket Number: No. 34146,34146
• Citation: 84 N.W.2d 109,165 Neb. 16
• Parties: Rose M. WOLFE, Appellee, v. LaVerne J. MENDEL, Appellant.
• Court: Nebraska Supreme Court

Page 109

84 N.W.2d 109

165 Neb. 16

Rose M. WOLFE, Appellee, v. LaVerne J. MENDEL, Appellant.

No. 34146.

Supreme Court of Nebraska.

July 5, 1957.

Syllabus by the Court.

1. When used as a measurement of distance, and nothing appears to the contrary, the commonly accepted meaning of a block is 300 feet.

2. Instructions not complained of in such a way as to be reviewable in this court will be taken as the law of the case, and if, when tested by such instructions, the verdict is not vulnerable to the objections lodged against it, the assignments will not be sustained.

3. When a person enters an intersection of two streets or highways he is obligated to look for approaching cars and to see those within that radius which denotes the limit of danger.

4. When a person fails to see an automobile not sohwn to be in a favored position, the presumption is that its driver will respect his right-of-way and the question of his contributory negligence in proceeding to cross the intersection is a jury question.

5. Before a verdict can be properly directed in such a case the position of the defendant's car must be definitely located in a favored position, otherwise the question becomes one for the jury.

6. Where a person looks and does not see an approaching vehicle, or, seeing one, erroneously misjudges its speed or distance, or for some other reason assumes that he can proceed and avoid a collision, the question of negligence is usually one for the jury.

7. Where two motorists approach an intersection at or about the same time, the driver approaching from the right has the right-of-way, and he may ordinarily proceed to cross, having a legal right to assume that his right-of-way will be respected by the other driver, but if the situation is such as to indicate to the mind of an ordinarily careful and prudent person in his position that to proceed would probably result in a collision, then he should exercise ordinary care to prevent an accident, even to the extent of waiving his right-of-way.

8. Before an error requires a reversal, it must be determined that it was prejudicial to the rights of the party against whom it was made.

9. As a general rule in case the defendant does not tender an instruction proper to the evidence for a present worth recovery of damages, the judgment will not be reversed because no such instruction was given.

10. Where an instruction does not prohibit or negative the computation of damages upon the basis of their present worth, it will not be assumed that the jury did not understand that it was to estimate the present value of future earnings lost.

11. Our holding in Borcherding v. Eklund, 156 Neb. 196, 55 N.W.2d 643, overruling in part Chambers v. Chicago, B. & Q. R. Co., 138 Neb. 490, 293 N.W. 338, is overruled.

12. A verdict may be set aside as excessive only when it is so clearly exorbitant as to indicate that it was the result of passion, prejudice, or mistake, or that it is clear that the jury disregarded the evidence or controlling rules of law.

13. The question of the amount of damage is one solely for the jury and its action in this respect will not be disturbed on appeal if it is supported by evidence and bears a reasonable relationship to the elements of injury and damage proved.

Baylor, Evnen & Baylor, Warren K. Urbom, Lincoln, for appellant.

Norma Ver Maas, Doyle, Morrison & Doyle, Lincoln, for appellee.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE and BOSLAUGH, JJ.

SIMMONS, Chief Justice.

This is an accident case where two automobiles collided in an intersection. Plaintiff sued for damages to person and property. Defendant denied negligence, alleged contributory negligence of the plaintiff, and sought by counterclaim to recover judgment for property damage.

The cause was tried to a jury resulting in a judgment for the plaintiff. Defendant appeals.

We affirm the judgment of the trial court.

Certain facts are not in serious dispute. The accident occurred at Nineteenth and P Streets in the city of Lincoln, about 5 p. m. on August 17, 1955. The weather was nice and the streets were dry. The intersection was not protected by signal lights or stop signs. Neither street was an arterial highway.

Plaintiff was driving her car south on Nineteenth Street. Defendant was driving his car west on P Street. Defendant approached the intersection on plaintiff's left.

The city ordinance provided: 'When two vehicles approach or enter an intersection at approximately the same time, the driver of the vehicle on the left shall yield the right-of-way to the vehicle on the right, except as otherwise herein provided. * * * The driver of any vehicle traveling at an unlawful rate of speed shall forfeit any right of way which he might otherwise have hereunder. * * * It shall be unlawful for any person to operate a vehicle on any street * * * at a rate of speed greater than is reasonable and prudent under the conditions then existing, provided, however, it shall be unlawful for any person to operate a vehicle * * * at any time or under any conditions, at a rate of speed greater than 25 miles per hour, except on arterial streets * * *.' Lincoln Traffic Ordinance No. 5699, §§ 701(a), 701(h), 720.

The cars collided in the northwest quarter of the intersection, both cars having proceeded to the point of the collision on their own side of the street but near the center line. Defendant's car struck plaintiff's car at the driver's seat door. Plaintiff's car went on south and struck parked cars along the curb and on the curb, and came to a stop some two or three car lengths south of the intersection. Defendant's car spun around counterclock-wise and stopped in the southeast quarter of the intersection. Defendant's car made skidmarks for 18 feet before the impact.

At the close of all the evidence defendant moved for a directed verdict on the grounds that the evidence showed the negligence of the plaintiff was more than slight in comparison with the negligence, if any, of the defendant; that the negligence of the defendant, if any, was less than gross in comparison with the negligence of the plaintiff; and that the negligence, if any, of the defendant was not the proximate cause of the accident and resulting damages.

The motion was overruled. The defendant later moved for judgment notwithstanding the verdict, or in the alternative for a new trial. The motion was overruled.

Defendant presents as error the ruling on these motions.

Under these circumstances we state the evidence according to the established rule that the plaintiff is entitled to have every controverted fact resolved in her favor and to have the benefit of every inference that can be reasonably deduced from the evidence. Kohl v. Unkel, 163 Neb. 257, 79 N.W.2d 405.

Plaintiff's evidence is that she was driving south at a speed of 20 to 25 miles per hour. She looked to her left or east as soon as the 'could see a view,' when she was about two car lengths, about 25 or 30 feet north of the curb line. She saw defendant's car coming then 'about half a block away,' 'Probably 100 feet' away. At that time she estimated defendant's speed at 35 miles per hour. She proceeded forward. She next looked to the east after she had entered the intersection and the defendant was then 25 or 30 feet to the east. She attempted to increase her speed to avoid the collision.

Plaintiff's evidence, then, was that she approached the intersection well in advance of the defendant. In Gorman v. Dalgas, 151 Neb. 1, 36 N.W.2d 561, 563, we held: 'When used as a measurement of distance, and nothing appears to the contrary, the commonly accepted meaning of 'a block' is 300 feet.'

The jury then could have found that the defendant was from 100 to 150 feet east of the intersection when plaintiff, on the right, was from 25 to 30 feet north of the curb line of P Street and traveling at 20 to 25 miles per hour.

Defendant's evidence is that when his car was 65 feet east of the north and south center line of the intersection, plaintiff's car was 100 feet north of the east and west center line of the intersection; when plaintiff's car was 43 feet north of the center line of the intersection defendant's car was 17 feet east of the center line of the intersection; and prior thereto his speed was 25 miles per hour and he had intended to cross the intersection ahead of the plaintiff. At that point he applied his brakes and skidded 18 feet into the plaintiff's car. Defendant estimated plaintiff's speed at 35 miles per hour prior to the impact.

Plaintiff's deposition had been taken prior to the trial. She then testified that she made her first observation to the left as she started into the intersection and that at that time she saw defendant's car at least half a block away.

Defendant contends that plaintiff failed to look to her left in time to avoid the accident; that having seen defendant's car she failed to again look to the left in time to avoid the accident; and that these failures constitute contributory negligence more than slight as a matter of law. He contends further that having seen the defendant's car at the left in time to avoid an accident, she failed to diminish her speed or take other action to avoid an accident, and in so doing tested an obvious danger; and that her failure constituted contributory negligence more than slight as a matter of law.

The trial court instructed the jury that the term intersection as used in the ordinances involved means that space occupied by two streets at the point where they cross each other bounded by the lot lines extended and shall include the sidewalk space as well as the roadway. The giving of this instruction is not assigned as error. It becomes the law of the case.

The rule is: 'Instructions not complained of in such a way as to be reviewable in this court will be taken as the law of the case, and if, when tested by such instructions, the verdict is not vulnerable to the...