Zavoral v. Pacific Intermountain Exp.

• Decision Date: 15 January 1965
• Docket Number: No. 35775,35775
• Citation: 178 Neb. 161,132 N.W.2d 329
• Parties: Ronald ZAVORAL, Appellant, v. PACIFIC INTERMOUNTAIN EXPRESS, a Corporation and Tinsley Naylor, Appellees.
• Court: Nebraska Supreme Court

Page 329

132 N.W.2d 329

178 Neb. 161

Ronald ZAVORAL, Appellant, v. PACIFIC INTERMOUNTAIN EXPRESS, a Corporation and Tinsley Naylor, Appellees.

No. 35775.

Supreme Court of Nebraska.

Jan. 15, 1965.

Syllabus by the Court

1. For an error at law occurring at the trial to be considered by this court, the alleged error must be properly presented to the trial court and properly preserved, otherwise the defendant is ordinarily precluded from raising it on appeal.

2. It is the duty of the trial court without a request to instruct the jury as to each issue presented by the pleadings and supported by the evidence.

3. A litigant is entitled to have the jury charged as to his theory of the case as shown by the pleadings and evidence, and the failure in this respect is prejudicial error.

4. Drivers approaching, entering, and crossing an intersection controlled by an automatic traffic signal have no absolute right to cross but must keep their vehicles under reasonable control and maintain a proper lookout such as a reasonably prudent person would under all of the cricumstances.

5. The meaning and force to be given to electrically operated traffic control signals, in the absence of a statute or ordinance, is that meaning which a reasonably prudent operator of an automobile should and would understand and apply.

6. Usually a yellow light following the green at an automatic signal controlled intersection warns that the red light is about to appear, and its purpose is to permit the clearance of vehicles from the intersection so that cross traffic may proceed.

7. In the absence of an applicable legislative enactment, the display of a yellow light, following the green on an automatic traffic signal, requires that vehicular traffic should stop before the crosswalk on the near side of the intersection unless such stop cannot be made safely in which event the vehicle may be driven carefully through the intersection, as a prudent person would do.

8. A 'go' or green signal at an automatic signal controlled intersection is a grant of permission to drivers to proceed lawfully and carefully.

9. The question of whether a driver should anticipate a change in lights as he approaches an intersection on a 'go' or green signal generally is for the jury under all of the circumstances, evidence, and facts of the case.

10. Ordinarily, in instructions, a court is not required to define words that are of common use and understanding.

Van Steenberg, Myers & Burke, Kimball, for appellant.

Hooltorf, Hansen, Fitzke & Kortum, Gering, Torgeson, Hurlbut & Knapp, Kimball, for appellees.

Heard before WHITE, C. J., CARTER, MESSMORE, SPENCER, and BOSLAUGH, JJ., and POLLOCK and SIDNER, District Judges.

WHITE, Chief Justice.

Defendants loaded 58,000 pound tractor-trailer combination, 49 feet 11 inches long, going west on U. S. Highway No. 30, about 12:30 a. m., on February 18, 1961, was in collision with plaintiff's southbound 1960 Oldsmobile. The collision occurred in the northwest quadrant of the automatic signal controlled intersection of U. S. Highway No. 30 and Chestnut Street (Highway 29) in the City of Kimball, Nebraska. Both streets and the intersection were 'snow packed' and icy. The weather was clear and cold. Plaintiff brings this suit for personal injuries and property damage to his automobile. From a jury verdict and judgment for the defendants, plaintiff appeals. We reverse the judgment and remand the cause for a new trial.

Plaintiff contends that the defendant driver, Tinsley Naylor, was guilty of negligence as a matter of law and that the court should have so instructed the jury. Plaintiff did not, by motion or requested instruction, raise this issue in the trial in district court. It is first raised here on appeal. Unless the question is raised by appropriate motion or otherwise, the failure of the trial court to so instruct is not an 'error of law' occurring at the trial and duly excepted to as required by section 25-1142, R.R.S.1943. Robinson v. Meyer, 165 Neb. 706, 87 N.W.2d 231.

We feel that the issues of negligence and contributory negligence presented a jury question on the record before us. The plaintiff's version of the accident is that he was traveling south at 15 miles per hour; that the traffic light changed to green when he was about 60 feet from the intersection; that he saw the defendants' tractor-trailer about 100 feet to the east of the intersection and traveling 35 to 40 miles per hour; that he became aware that defendant driver wasn't going to stop; and that he applied his brakes, slid on the icy pavement into the intersection, and collided with the defendants' changed to green about a block to a block just ahead of the rear dual tires about 10 to 12 feet from the rear of the truck. The defendant driver's testimony is that he slowed to 30 miles per hour on the east edge of Kimball; that he continued at that speed through the intersection; that the yellow light of the automatic signal came on just as he crossed the east crosswalk entering the intersection; that the lights had changed to green about a block to a block and a half to the east; that he saw plaintiff's car when he was 40 to 50 feet east of the intersection and his light was green; and that he was in the intersection and had passed in front of plaintiff's car when it was about crossing the south line of the crosswalk into the intersection. He estimated the speed of plaintiff's car at 25 miles per hour which did not slacken. The applicable posted speed limit under the statute (section 39-7,108, R.R.S.1943), was 30 miles per hour on U. S. Highway No. 30 and 25 miles per hour on Chestnut Street (Highway 29). This was stipulated to by the parties. The light cycle on the automatic signal facing defendant driver was 24 seconds green, 3 seconds yellow, and 33 seconds red.

It is apparent that there is a direct conflict in the testimony which the jury must resolve. According to the plaintiff, the defendant driver ran a red light at an unlawful speed. According to the defendant driver, his speed was lawful and he would have cleared the intersection before the light was green for the plaintiff, and the jury could have found that the lights were changing as each entered and that each was then going too fast under the conditions then existing. A green light is a permission to proceed carefully and not an absolute right-of-way. Styskal v. Brickey, 158 Neb. 208, 62 N.W.2d 854. The testimony as to speed and failure to reduce it under the conditions existing, in violation of the statute (section 39-7,108, R.R.S 1943), does not show negligence as a matter of law but is evidence of negligence for the jury to consider under all of the circumstances. The questions of proper lookout and control were also for the jury. There is no statute or ordinance governing the duty of drivers to anticipate a change in lights when approaching an automatic signal. His actions and conduct in this respect are for the jury. The question is whether he exercised that degree of control and kept a lookout that a reasonably prudent person would under all of the circumstances.

The plaintiff contends that the trial court failed to submit the issue of the unlawful speed of defendant driver in violation of the statutory limit. The plaintiff pleaded, and there was evidence to support the allegation, that the defendant driver Naylor was driving in excess of the posted speed limit of 30 miles per hour on U. S. Highway No. 30 at the time and place of the accident. The trial court, in instruction No. 4, submitted for the jury's determination whether the defendant driver was negligent 'in negligently driving at an unreasonable rate of speed.' The court submitted the case to the jury for special findings. The first special finding limited the jury's consideration of speed to the above quoted material element as stated in instruction No. 4. The court did not submit the issue of negligence in driving in excess of the applicable posted statutory limit of 30 miles per hour. The same situation was presented to this court in Ripp v. Riesland, 170 Neb. 631, 104 N.W.2d 246. Therein we said (at page 653, 104 N.W.2d at page 261), as follows: 'The instruction of the trial court as to what appellants alleged as to the speed of the automobile of the deceased was that he operated his vehicle on a highway 'at a greater speed than was reasonable and proper under the conditions existing towards the east of the intersection * * *.' This was too restricted, general, and an unfair representation of the allegations of the speed of the automobile of deceased. It was plainly alleged in the answer that the speed of the automobile of deceased was in excess of 65 miles per hour and there is evidence supporting that allegation. It is the duty of trial court without a request to instruct the jury as to each issue presented by the pleadings and supported by evidence. A litigant is entitled to have the jury charged as to his theory of the case as shown by pleading and evidence and a failure in this respect is prejudicial error. McKain v. Platte Valley Public Power & Irr. Dist., 151 Neb. 497, 37...