Wolstenholm v. Kaliff

• Decision Date: 07 February 1964
• Docket Number: No. 35509,35509
• Citation: 176 Neb. 358,126 N.W.2d 178
• Parties: Howard E. WOLSTENHOLM, Executor of the Estate of Alice H. Wolstenholm, Deceased, Appellee-Cross-Appellant, v. Janet A. KALIFF and Charles L. Kaliff, Appellants-Cross-Appellees.
• Court: Nebraska Supreme Court

Page 178

126 N.W.2d 178

176 Neb. 358

Howard E. WOLSTENHOLM, Executor of the Estate of Alice H. Wolstenholm, Deceased, Appellee-Cross-Appellant, v. Janet A. KALIFF and Charles L. Kaliff, Appellants-Cross-Appellees.

No. 35509.

Supreme Court of Nebraska.

Feb. 7, 1964.

Syllabus by the Court

1. When the trial court gives no reason for sustaining a motion for a new trial the appellant meets the duty placed upon him when he brings the record here for examination with his assignment of no prejudicial error.

2. The duty then rests on the appellee to point out the prejudicial error that he contends exists to justify the action of the trial court.

3. In review in this court of an order granting a motion for a new trial, there is no burden in the sense of a burden of proof upon either party. The burden is upon both parties to assist the court to a correct determination of the question or questions presented.

4. In the absence of evidence to the contrary, there is a presumption that the deceased who had the directional right-of-way was exercising due regard for her own safety and the safety of others.

5. Negligence is never presumed, and it cannot be inferred from the mere fact that an accident happened.

6. Negligence must be proved by direct evidence, or by facts from which negligence can reasonably be inferred.

7. Negligence is a question of fact and may be proved by circumstantial evidence and physical facts. However the law requires that the facts and circumstances proved, together with the inference that may properly be drawn therefrom, indicates with reasonable certainty the negligent act charged.

8. Circumstantial evidence sufficient to submit an issue of negligence to a jury must be such that a reasonable inference arises showing that the person charged was negligent and that such inference is the only one that reasonably can be drawn therefrom.

9. When one looks and does not see what is in plain sight he is in the same situation as one who does not look.

10. The driver of an automobile entering an intersection of two highways is obligated to look for approaching automobiles and to see any vehicle within the radius which denotes the limit of danger.

11. 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 negligence as a matter of law.

12. The operator of an automobile approaching or entering an intersection is required to see another automobile approaching or entering the intersection which has been favored with the right-of-way under the statutory rules of the road and a failure to see such favored automobile is negligence as a matter of law.

Wallace W. Angle, York, Herman Ginsburg, Lincoln, for appellants.

John R. Brogan, John E. Dougherty, York, for appellee.

Heard before WHITE, C. J., CARTER, MESSMORE, SPENCER, BOSLAUGH and BROWER, JJ., and LYNCH, District Judge.

SPENCER, Justice.

This is an action by Howard E. Wolstenholm as executor of the estate of Alice H. Wolstenholm, deceased, hereinafter referred to as appellee, to recover for the alleged wrongful death of his wife in the collision of an automobile being operated by her and the automobile owned by the defendants Janet A. Kaliff and Charles L. Kaliff, and being operated by Janet A. Kaliff. The Kaliffs are husband and wife. They will hereinafter be referred to collectively as appellants, or individually by their respective names.

The appellee sought recovery in three causes of action: First, for the wrongful death; second, for funeral expenses; and third, for hospital and medical expenses. The jury returned a verdict for the appellee on each of the three causes of action as follows: First cause of action, $6,970.67; second cause of action, $1,180.50; and third cause of action, $195. The appellee filed a motion for a new trial which was sustained. Appellants have perfected an appeal to this court. Appellee has also perfected a cross-appeal seeking to limit a new trial of the case to the amount of the damages.

The district court gave no reason for its decision sustaining the motion for new trial. In such situation, we have held that the appellant meets the duty placed upon him when he brings the record here for examination with his assignment of no prejudicial error. The duty then rests upon the appellee to point out the prejudicial error that he contends exists to justify the action of the trial court. See Biggs v. Gottsch, 173 Neb. 15, 112 N.W.2d 396. In that case we held: 'On review in this court of an order granting a new trial, there is no burden in the sense of a burden of proof upon either party. The burden is upon both parties to assist the court to a correct determination of the question or questions presented.'

To meet the burden imposed upon him, appellee alleges 20 assignments of error which for the purpose of our discussion herein, we condense to three: First, did the court err in submitting the issue of contributory negligence to the jury; second, did the court err in not finding the defendant Janet A. Kaliff guilty of negligence as a matter of law; and third, did the court err in not holding that the only issue to be submitted to the jury was the question of the amount of damages?

The collision occurred about 12:25 p. m., on the 25th day of February 1961, at a county road intersection in York County, known as the Maple Grove schoolhouse corner, which is approximately 3 miles south and east of the city of York, Nebraska.

Alice H. Wolstenholm, hereinafter referred to as the deceased, was driving a 1959 DeSoto automobile, hereinafter referred to as DeSoto, from the west and traveling to the east. Janet A. Kaliff was driving a 1961 Ford, hereinafter referred to as Ford, from the north and traveling to the south. A 'Yield Right of Way' sign had been erected by the county on the north-south road, approximately in line with the fence running east and west. This sign was 36 feet 8 inches from the center of the intersection. The roads in question were gravel surfaced and were each 29 feet from shoulder line to shoulder line, but each had a graveled windrow, leaving a traveled surface of only 18 feet. The overall width of the intersection from fence line to fence line was 65 feet. The weather at the time in question was clear. The roads were dry and the sun was shining. It is undisputed that the view of the intersection from the direction each vehicle was traveling was unobstructed for at least a quarter of a mile.

Janet A. Kaliff testified that her vision was good and that as the approached the intersection there was nothing to distract her attention. She testified that she stopped back of the 'Yield Right of Way' sign and looked both ways. She saw nothing and proceeded into the intersection at 5 miles per hour, which was her speed at the time of the impact. She looked to the east and to the west after she pulled into the intersection and saw nothing. She traveled south in a direct line to the point of impact. She does not know if she ever applied her brakes. She has a question about it because the leather was torn down on the instep of her slipper about an inch, and she believes this might have been caused by applying her brakes at the last instant. She testified that she was actually in the impact of the two automobiles before she saw the other vehicle.

There were no eyewitnesses to the impact. Three witnesses testified to seeing a cloud of dust 10 to 15 feet high, but none of them saw the impact or the movement of the cars. Two of these witnesses were driving south on the north-south road approximately 1/2 mile from the intersection. The other witness was proceeding west on the east-west road, but his distance from the intersection is not disclosed by the record.

When the cars came to rest, the Ford was in the east ditch of the north and south road, facing south, the same direction in which the car was being driven. The DeSoto was on the east and west road on its top in the south ditch facing west, the direction from which it had been traveling. The front seat of the DeSoto, which had been bolted down with steel bolts, was out of and in front of the vehicle. The deceased was lying 20 feet east and in front of her vehicle.

There were scrape marks in the intersection, starting 2 feet south and 1 foot west of the geographical center of the intersection. It was possible to identify these marks with the two cars, and they went side-by-side to the southeast corner. The start of the marks was 33 feet 6 inches from the back of the Ford where it came to rest, and 62 feet from the back of the DeSoto. There was blue paint on the fencepost at the apex of the southeast corner, which indicates it made contact with the DeSoto. Exhibit No. 15 shows what appears to be the imprint of a fencepost across the trunk of the DeSoto. This point is 46 feet 8 inches from the start of the marks in the intersection.

The force of the impact to the DeSoto was in the center of the car. The left side of the DeSoto was caved in from about the front door post on back to the back door. The steering wheel was pushed against the dash. The front seat, as mentioned, was thrown from the car. The frame of the car was bent toward the direction in which the Ford was traveling. There was no damage to the immediate front of the DeSoto. The damage to the Ford was to the direct front and both front fenders. The exhibits in evidence indicate that this damage was extensive, although there is no detailed description of the specific damage.

In the absence of other evidence, we assume the point of impact to be the point where the slide marks start in the intersection. This is 2 feet south and 1 foot west of the geographical center of the intersection. The photographs in evidence show that the left side of the DeSoto was struck by the front of the Ford at approximately the front door. There is no evidence in this record as to the speed...