Woodworth v. Johnston

• Decision Date: 26 May 1936
• Docket Number: 29561
• Citation: 267 N.W. 243,131 Neb. 113
• Parties: CHARLES WOODWORTH, JR., APPELLANT, v. JEMIMA JOHNSTON ET AL., APPELLEES
• Court: Nebraska Supreme Court

267 N.W. 243

131 Neb. 113

CHARLES WOODWORTH, JR., APPELLANT, v. JEMIMA JOHNSTON ET AL., APPELLEES

No. 29561

Supreme Court of Nebraska

May 26, 1936

APPEAL from the district court for Douglas county: WILLIS G. SEARS JUDGE. Affirmed.

AFFIRMED.

Syllabus by the Court.

Evidence in the record examined, and held to justify action of trial court in peremptorily directing verdict for the defendants.

Appeal from District Court, Douglas County; Sears, Judge.

Action by Charles Woodworth, Jr., a minor, by Charles Woodworth Sr., his father and next friend, against Jemima Johnston and others. From a judgment of dismissal and an order refusing a new trial, plaintiff appeals.

Affirmed.

Johnsen, Gross & Crawford, for appellant.

Crofoot, Fraser, Connolly & Stryker and Kennedy, Holland, De Lacy & Svoboda, contra.

Heard before GOSS, C. J., ROSE, GOOD, EBERLY, DAY, PAINE and CARTER, JJ.

OPINION

EBERLY, J.

This is a personal injury action brought by Charles Woodworth, Sr., for the benefit of his minor son, Charles Woodworth, Jr., age five years. At the time of the accident in suit, the injured boy was riding in a Ford automobile, then being driven by defendant Jemina Johnston, his grandmother. This car was then owned by the defendant Robert D. Johnston, his grandfather, and was being used as a family purpose car. The car driven by the grandmother was proceeding east on Burt street in Omaha, Douglas county, Nebraska, on its proper side of the highway, when, in passing over a portion of pavement shadowed by the Creighton Stadium, it encountered an icy depression which deflected the car and caused it to swerve and skid angularly to the north and eastward across Burt street where, on the wrong side thereof, it collided with a west-bound truck, owned and driven by defendant Lewis E. Stillman. The boy, Charles Woodworth, Jr., was injured in the collision. This suit is brought against Jemima Johnston and Robert D. Johnston, the grandmother and grandfather, charging the grandmother with gross negligence in driving the car at the time of the accident, and charging the grandfather with liability because of the family purposes to which the use of the car had been devoted by him, which, it was alleged, was sufficient to subject him to the results of the gross negligence of his wife, defendant Jemima Johnston. The defendant Lewis E. Stillman is charged with ordinary negligence which contributed to the accident. At the conclusion of all the evidence the court directed a verdict in favor of all the defendants. From the judgment of dismissal, and the overruling of his motion for a new trial, the plaintiff appeals.

The testimony of three eyewitnesses details without material conflict the manner in which the accident occurred. It happened about 5 o'clock in the afternoon of February 28, 1934, near the intersection of Twenty-fifth avenue and Burt street. Burt street is an east and west street. It had been a warm winter day, and snow and ice remaining on the streets of Omaha had been melting. It appears that at the time of the accident Burt street was generally free from ice and snow. A structure, known as the Creighton Stadium, was situated immediately south of the scene of the collision, with a wall some 40 feet in height which extended along the south line of Burt street, and effectively shaded a portion of this street, and thus the melting of the snow and ice that had previously accumulated at this point was in a measure thereby prevented. While the evidence as to ice extending along the north half of Burt street may be said to be in conflict, it is not disputed that at about 5 o'clock the temperature fell below freezing, and ice was again formed adjacent to the Creighton Stadium where it had melted earlier in the day. The defendant Stillman was a trucker, and the owner of a new Reo truck which he had purchased in November, 1933. It was equipped with hydraulic brakes, and its general good condition is not questioned in the evidence. It weighed approximately 7,000 pounds and had a cargo on board which amounted to 4,000 pounds. On the day mentioned, it had secured its load and was proceeding westward on Burt street, and it is admitted that during the entire incident it was properly driven on the north half of this thoroughfare, its proper side of the street. Arriving at Twenty-fourth avenue the truck was brought to a full stop in obedience to a road sign located at that point. It then proceeded at a low rate of speed. Witnesses vary in their estimate of the maximum speed of the truck at from 10 to 20 miles an hour from this point to the place of collision. The evidence of the truck driver is that when first discovered by him the Ford car, which was then driven by Jemima Johnston and in which the plaintiff was riding, was on the south side of the street, and coming east. He testifies: "Q. And tell us how that occurred as to whether it came gradually or whether it darted over, or went fast, or how it occurred? A. Well, she hit this hole, that is it started to skid. There is a little dip there, and after she hit it she lost control and it started to skid, and I think if she had a little heavier car it would not have skidded so much, but at the speed she was traveling and that light car, when she hit this hole, that it was what started her to skid. She skidded a little bit northeast to start with. That is when I slammed on the brakes and then after that she came with a jerk, came in right north. She never changed the speed any that she was traveling. She was traveling the same speed when she hit me as she was traveling when she went in that hole. * * * Q. Now, you think that as soon as you saw her start across the street, I suppose you started to stop? A. Yes, sir; absolutely. Just the minute I saw she hit that, I slammed my brakes."

The evidence indicates that the first swerve or skid of the Ford car occurred about 50 to 60 feet west of the west curb line of Twenty-fifth avenue. Witness Kidd, the only other witness who testifies as to the movements of the truck immediately preceding the impact, says he had stopped his car at the intersection of Twenty-fifth avenue and...