Ybarra v. Wassenmiller
| Decision Date | 29 April 1980 |
| Docket Number | No. 42697,42697 |
| Citation | 291 N.W.2d 725,206 Neb. 164 |
| Parties | Perfecto YBARRA, Appellant, v. Walter W. WASSENMILLER and First National Bank & Trust Company, a corporation, Appellee. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Negligence: Juries. In determining the question of whether the evidence is sufficient to submit the issues of negligence and contributory negligence to the jury, a party is entitled to have all conflicts in the evidence resolved in his favor and the benefit of every reasonable inference that may be deduced from the evidence. If reasonable minds might draw different conclusions from a set of facts thus resolved in favor of a party, the issues of negligence and contributory negligence are for a jury.
2. Pedestrians: Motor Vehicles: Right-of-Way. A pedestrian has equal rights with the operator of a vehicle in the use of a private way used by members of the public and each must use reasonable care for his own safety and the safety of others.
3. Pedestrians: Right-of-Way: Negligence. A pedestrian has a legal right to walk longitudinally along a driveway, but in doing so is required to use reasonable care for his own safety.
4. Negligence: Motor Vehicles. The law does not forbid the backing of an automobile upon the streets or highways, and to do so does not constitute negligence, but the driver of an automobile must exercise ordinary care in backing his machine, so as not to injure others by the operation, and this duty requires that he adopt sufficient means to ascertain whether others are in the vicinity who may be injured.
5. Negligence: Motor Vehicles. In backing a vehicle, the operator's duty to sound a horn is not an absolute one, but depends upon the circumstances at the time.
6. Negligence. One who is capable of understanding and discretion, and who fails to exercise ordinary care and prudence to avoid obvious dangers, is negligent or contributorily negligent.
7. Negligence: Pedestrians: Motor Vehicles. One who is in a place of safety and is aware of a moving vehicle in close proximity to him, and who moves from such place of safety into the path of the vehicle and is struck, is, by his own conduct, guilty of negligence more than slight sufficient to defeat his recovery.
Friedman Law Offices, Herbert J. Friedman, Lincoln, for appellant.
Con M. Keating and Gary J. Nedved of Marti, Dalton, Bruckner, O'Gara & Keating, P.C., Lincoln, for appellee.
Heard before KRIVOSHA, C. J., and BOSLAUGH, McCOWN, CLINTON, BRODKEY, WHITE, and HASTINGS, JJ.
Perfecto Ybarra, plaintiff, brought this action against Walter W. Wassenmiller, defendant, for damages alleged to have been suffered when plaintiff, while walking on the driveway of the First National Bank & Trust Company's drive-in banking facilities, was struck by a camper-trailer being backed up by the defendant. The jury was instructed on both the alleged negligence of the defendant and contributory negligence of the plaintiff, and it returned a verdict in favor of the defendant. Plaintiff appeals, contending that the trial court erred: (1) In refusing to grant plaintiff's motion for a directed verdict against the defendant; and (2) In instructing the jury on contributory negligence of the plaintiff. We affirm.
On July 29, 1976, plaintiff was employed as a uniformed security and traffic guard at the First National Bank & Trust Company's drive-in banking facilities located at 13th and L Streets in Lincoln, Nebraska. The bank was joined in the lawsuit as a party defendant for workmen's compensation subrogation purposes and is not a party to this appeal. At approximately 4:45 p. m. on that date, the defendant, who was driving a 1975 Chevrolet pickup truck with a camper shell on it, drove into the banking facilities for the purpose of cashing a check. The northern portion of the west side parking and driving area was closed off to traffic because of construction operations. The defendant, finding no parking stalls, parked in an area not designated for parking near the northeast corner of the west side facilities. He was headed in a northerly direction and directly in front of him was the blocked-off construction area. Immediately to his right, or to the east, was a line of diagonally-parked automobiles. Directly south of this line of automobiles was the guard shack which constituted the plaintiff's headquarters while on duty. Straight west of the defendant's vehicle was a driveway leading to a drive-through teller station. Farther to the south and west of his vehicle was the bank building itself. The driveway on which defendant was parked extended to the south and provided access to the facility from L Street.
The defendant had just stopped his truck and was in the process of getting out to transact his business when the plaintiff walked up to him from the guard shack and told him he would have to move his vehicle. The plaintiff then turned and started back for the guard shack, walking in a southerly direction directly behind the defendant's camper vehicle. At the same time, the defendant commenced backing and after moving perhaps 15 to 20 feet, he struck the plaintiff. The defendant said he looked in both of his outside rear view mirrors and through the back window and saw no one behind him. He insisted that he continued to look to his rear as he backed, but admitted that there is a blind spot where nothing can be seen looking back in any manner. He did not see the plaintiff behind him.
The plaintiff testified that after he told the defendant he would have to move he, the plaintiff, turned and walked to the south and toward the guard shack along the driveway behind the defendant's vehicle. He said that he may have glanced once at the truck, but after walking the whole length of it, he never did see it again. He also agreed that the only way the defendant could have moved his truck was to the rear, but he contended that after backing it a shorter distance than the defendant did, it could have been driven in a forward motion to the west and through the teller driveway. At the close of all the evidence, the plaintiff moved the court for an order "directing liability against the defendant for the reason that the defendant is negligent as a matter of law . . .." This motion was overruled. Additionally, although the plaintiff made no specific objection on the record to the trial court's giving of an instruction on his alleged contributory negligence, he nevertheless raises that as one of his assignments of error.
In determining the question of whether the evidence is sufficient to submit the issues of negligence and contributory negligence to the jury, a party is entitled to have all conflicts in the evidence resolved in his favor and the benefit of every reasonable inference that may be deduced from the evidence. If reasonable minds might draw different conclusions from a set of facts thus resolved in favor of a party, the issues of negligence and contributory negligence are for a jury. Pearson v. Richard, 201 Neb. 621, 271 N.W.2d 326 (1978). A pedestrian has equal rights with the operator of a vehicle in the use of a private way used by members of the public and each must use reasonable care for his own safety and the safety of others. Bassinger v. Agnew, 206 Neb. 1, 290 N.W.2d 793 (1980). A pedestrian has a legal right to walk longitudinally along a driveway, but in doing so is required to use reasonable care for his own safety. Bassinger v. Agnew, supra.
Plaintiff's argument that he was entitled to a directed verdict on the question of liability is based upon his claim that the defendant was guilty of negligence as a matter of law in failing to keep a proper lookout and in failing to sound a warning of his intention to back. Addressing first the claim as to lookout, three of the principal cases cited by the plaintiff are Bonnes v. Olson, 197 Neb. 309, 248 N.W.2d 756 (1976); Johnson v. Enfield, 192 Neb. 191, 219 N.W.2d 451 (1974); and Taulborg v. Andresen, 119 Neb. 273, 228 N.W. 528 (1930).
In Bonnes v. Olson, the defendant, who was required by law to stop at the intersection,...
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