Ziskovsky v. Miller
| Decision Date | 17 July 1930 |
| Docket Number | 27151 |
| Citation | 231 N.W. 809,120 Neb. 255 |
| Parties | MARY ZISKOVSKY, APPELLEE, v. LOUIS H. MILLER, APPELLANT |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Douglas county: ARTHUR C THOMSEN, JUDGE. Affirmed.
AFFIRMED.
Syllabus by the Court.
It is required by section 8395, Comp. St. 1922, that " every motor vehicle while in use on public highways shall be provided with good and sufficient brakes." The term " good and sufficient brakes," as used in the statute, means brakes that, when applied, are adequate to promptly check and slacken the speed of a motor vehicle and bring it to a complete stop.
Due to the extensive use of motor vehicles upon the streets and highways, one who operates such a vehicle thereon is bound to take notice that he may be called upon to make emergency stops, and it is the duty of such person to exercise reasonable care to keep the brakes on his motor vehicle in such condition that such stops are possible.
A request for a physical examination of an injured party, made during the progress of the trial, is addressed to the sound discretion of the trial court, and a denial of such request is not error, unless, under the circumstances, there appears to have been an abuse of such discretion.
Evidence examined and held sufficient to sustain the verdict of the jury.
Under the evidence, the amount of damages awarded plaintiff by the jury held not to be excessive.
Appeal from District Court, Douglas County; Thomsen, Judge.
Action by Mary Ziskovsky against Louis H. Miller. Judgment for plaintiff, and defendant appeals.
Affirmed.
Crofoot, Fraser, Connolly & Stryker and James T. English, for appellant.
O'Sullivan & Southard, contra.
Heard before GOSS, C. J., DEAN, GOOD, THOMPSON and DAY, JJ., and FITZGERALD and HASTINGS, District Judges.
This action was brought by Mary Ziskovsky, appellee, to recover damages for personal injuries sustained by her, and to recover damages on a claim that her husband had assigned to her for loss of her services, medical and other expenses incurred on account of her alleged injuries. Both causes of action alleged in her petition arose out of a collision between an automobile owned and driven by the appellant, in which plaintiff was riding as an invited guest, and the automobile of another. The trial resulted in a verdict and judgment for plaintiff in the sum of $ 2,000, and defendant appeals.
The principal ground urged by defendant for a reversal is that the evidence is not sufficient to support the verdict.
Plaintiff alleged in her petition that the collision complained of was due to negligence on the part of the defendant, in that he failed to have the brakes on his automobile in reasonably good working condition; that he failed to stop his car or turn his car in time to avoid the collision, when, in the exercise of reasonable care and caution, he knew or should have known in ample time of the presence of another automobile.
It is the contention of counsel for defendant that there is no evidence that the brakes on defendant's car were defective, or, if defective, that such condition of the brakes was the proximate cause of the collision, and that defendant could not avoid the collision owing to the sudden appearance of the other car directly in front of him.
Plaintiff's case rests upon her own testimony, that of her husband, a photograph of the street on which the collision occurred, and a statement of the defendant in a deposition as to the speed that he was driving his car at the time of the accident.
The defendant did not testify, although present at the trial. The only witness called in behalf of the defendant was one of the counsel for the defendant and the insurance company in which defendant carried liability insurance. His testimony was in relation to certain written statements signed by the plaintiff and her husband, made shortly after the accident. The written statements were introduced in evidence by defendant as tending to contradict their testimony given at the trial.
The evidence, without conflict, discloses that on the 24th day of June, 1928, at about 7:30 p. m., while plaintiff and her husband, as the invited guests of the defendant, were riding in an Oldsmobile coupe owned and driven by the defendant, and while said automobile was being driven east along Pacific street in Douglas county, the automobile driven by defendant collided with a Chevrolet coach owned by Celia Stiefler and driven by one Boyer. The Chevrolet coach had entered Pacific street from a private driveway leading from the Highland Country Club and was first seen by the husband of plaintiff when defendant's car was about 50 or 75 feet from it. Plaintiff's husband immediately called the attention of the defendant to the car, and the defendant replied that he saw it. The Chevrolet car was then about in the center of Pacific street and proceeding slowly to the north. They both testify that defendant attempted to apply his brakes, but that the speed of his car did not seem to slacken, and that as the Chevrolet car was turning to the westward in said street and headed in a northwesterly direction defendant's car struck it on the left side and about the middle thereof and shoved it some distance to the east. An excerpt from a deposition given by defendant and introduced in evidence by plaintiff shows that defendant testified therein that at the time of the collision he was driving at about 30 or 35 miles an hour. The plaintiff and her husband in their testimony did not give an opinion as to the speed of defendant's car at or about the time of the collision, but their written statements introduced by defendant show, at the time that they made such statements, that they estimated the speed of defendant's car at from 25 to 30 miles an hour. A photograph of Pacific street looking east from a point 150 feet west shows that a clear view of that street may be had to the east from said point to where the private driveway from the Highland Country Club intersects the same, and that a car could be seen for some distance south of where said driveway intersects Pacific street, before entering upon said street. Plaintiff and her husband both testify that about five months after the alleged collision defendant told them that he
In the case of Lewis v. Miller, 119 Neb. 765, 230 N.W. 769 in which the defendant herein...
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