Summary
In Bartosh v. Schlautman, 181 Neb. 130, 147 N.W.2d 492 (1966), the court held that where an exception to the range of vision rule applies, the general range of vision rule does not apply, and the determination of negligence becomes a question for the jury.
Summary of this case from Converse v. MorseOpinion
No. 36281.
Filed December 22, 1966.
1. Automobiles: Negligence. Where reasonable minds may differ on the question of whether a motorist exercised the ordinary care required of him under the circumstances, the issue of negligence is one of fact for the jury. 2. ___: ___. Generally it is negligence, as a matter of law, for a motorist to drive so fast on a highway at night that he cannot stop in time to avoid collision with an object within the area lighted by his headlights. 3. ___: ___. Exceptions to the general rule that a motorist who cannot stop his automobile in time to avoid a collision with an object within the range of his vision is negligent as a matter of law embrace those situations where reasonable minds might differ as to whether the motorist was exercising due care under the particular circumstances. 4. ___: ___. An exception to such general rule occurs when the object struck is the same color as the roadway and cannot ordinarily be observed by the exercise of ordinary care in time to avoid a collision. 5. ___: ___. The general rule that a motorist who cannot stop his automobile in time to avoid a collision with an object within the range of his vision or lights is negligent as a matter of law is not an automatic rule of thumb, nor a rigid formula to be applied regardless of circumstances. The applicability of the rule, as a matter of law, depends on the individual circumstances and is for the court's determination. 6. ___: ___. Where the general rule does not apply as a matter of law, the determination of negligence is for the jury under the rules and standards of due care under the particular circumstances as applied in motor vehicle cases. 7. Trial: Appeal and Error. It is not error to refuse a requested instruction if the legal principles therein announced are either incorrectly stated or inapplicable to the issues involved. 8. Trial. In testing the sufficiency of the evidence to support a verdict, it must be considered in the light most favorable to the successful party, that is, every controverted fact must be resolved in his favor, and he should have the benefit of every inference that can be reasonably deduced therefrom.
Appeal from the district court for Dodge County: ROBERT L. FLORY, Judge. Affirmed.
Richards, Yost Schafersman, for appellant.
Edward Asche and Sidner, Gunderson, Svoboda Schilke, for appellee.
Heard before WHITE, C.J., SPENCER, BOSLAUGH, BROWER, SMITH, and McCOWN, JJ., and NEWTON, District Judge.
This is an action for personal injuries and property damage sustained by the plaintiff and appellant, Albin Bartosh, in a collision with a truck owned by the defendant and appellee, Ray Schlautman, doing business as Schlautman Transfer Company. Defendant and appellee filed a cross-petition for damage to his truck, and at a trial before a jury was awarded a verdict on his cross-petition. Judgment was entered accordingly, motion for new trial was overruled, and plaintiff appealed.
The accident occurred on the evening of Sunday, November 8, 1964, on highway 91, a short distance east of Dodge, Nebraska. Plaintiff had been operating a farm tractor and cornpicker in an adjacent field, pulled on to the highway with the tractor, mounted picker, and towing a farm wagon loaded with ear corn. He attempted to shift gears and the gears jammed so that he came to a stop in the right-hand lane of the hard-surfaced highway. He immediately proceeded to repair the tractor. There were no flares placed and no lights upon plaintiff's vehicle. While repairing the tractor, the wagon was struck from the rear by defendant's truck.
The evidence relating to whether or not the accident happened before or after a half hour after sunset, the extent of the darkness, and the extent of visibility on the highway was conflicting.
During the time that plaintiff's vehicles were stalled upon the highway, one other automobile had approached from the rear and passed him on the left. A second had approached from the rear and driven into the right-hand ditch to avoid colliding with the plaintiff's vehicles. The third vehicle to approach from the rear was defendant's truck.
Plaintiff requested the following instruction: "You are instructed that the driver of a motor vehicle must at all times have the same under control so that it can be stopped within the range of the driver's vision, or the range of its lights." This instruction was refused, but the court did instruct generally on the duties of a motorist regarding "control" and "lookout." Pertinent parts of the court's instruction No. 11 are as follows: "It is the duty of drivers of vehicles to keep such diligent watch and lookout and have their vehicles under such reasonable control at all times as will enable them to avoid collision with others, assuming that such others will also exercise ordinary care. * * * Each driver must use such senses of sight and hearing, and such other instruments as are at his command, to use ordinary care to avoid an accident, and it is the duty of drivers of vehicles to look and see that which is in plain sight."
Plaintiff insists that the trial court committed error in failing to give the instruction requested.
Where reasonable minds may differ on the question of whether a motorist exercised the ordinary care required of him under the circumstances, the issue of negligence is one of fact for the jury. Weisenmiller v. Nestor, 153 Neb. 153, 43 N.W.2d 568; Miers v. McMaken, 147 Neb. 133, 22 N.W.2d 422; Anderson v. Nincehelser, 152 Neb. 857, 43 N.W.2d 182.
Generally it is negligence, as a matter of law, for a motorist to drive so fast on a highway at night that he cannot stop in time to avoid collision with an object within the area lighted by his headlights. Robins v. Sandoz, 175 Neb. 5, 120 N.W.2d 360; Pool v. Romatzke, 177 Neb. 870, 131 N.W.2d 593; Murray v. Pearson Appliance Store, 155 Neb. 860, 54 N.W.2d 250.
Exceptions to the general rule that a motorist who cannot stop his automobile in time to avoid collision with an object within the range of his vision is negligent as a matter of law embrace those situations where reasonable minds might differ as to whether the motorist was exercising due care under the particular circumstances. Guynan v. Olson, 178 Neb. 335, 133 N.W.2d 571.
An exception to such general rule occurs when the object struck is the same color as the roadway and cannot ordinarily be observed by the exercise of ordinary care in time to avoid a collision. Weisenmiller v. Nestor, supra.
In this case, plaintiff specifically alleged a violation of the general rule and the defendant specifically alleged facts within the exception to the rule. The so-called general rule is a rule of law which, from its inception in Roth v. Blomquist, 117 Neb. 444, 220 N.W. 572, 58 A.L. R. 1473, has been stated as being subject to many exceptions. The exceptions are discussed and referred to in Robins v. Sandoz, 177 Neb. 894, 131 N.W.2d 648, and in Guynan v. Olson, supra. To say the least, it is difficult to determine the exact extent to which the exceptions have undercut the general rule, but we have consistently announced our adherence to it. The general rule is not an automatic rule of thumb nor a rigid formula to be applied regardless of circumstances. The applicability of the rule, as a matter of law, depends on the individual circumstances and is for the court's determination. Where an exception clearly applies, the general rule does not apply. Where the general rule does not apply as a matter of law, the determination of negligence is for the jury under the rules and standards of due care under the particular circumstances as applied in motor vehicle cases.
The evidence, here established that the highway surface was a light color, or gravel color, as referred to by one witness; that the back of the wagon was of new ship-lap or lumber color; and that there were no lights of any kind on the wagon, the corn picker, or the tractor. There were only two witnesses who testified as to the appearance of the wagon from the rear prior to the accident. The witness who approached at an undisclosed time before the accident testified that he could see something unusual on the highway from an undisclosed distance, but that he "couldn't tell at first what it was until we went by and then I seen it. * * * It kind of looked — a fellow couldn't tell exactly. It looked like something in the way but exactly what it was I didn't know until I got closer."
The only other witness as to visibility was an individual who approached from the rear only moments before this accident, was forced to drive his vehicle into the ditch to avoid colliding with the wagon, and was still in the ditch when this accident happened. He testified that he thought he saw something in the road that was not definite but was "more of a shadow"; that he didn't think he could stop and, therefore, went into the ditch and that at the time he took to the ditch, it appeared like a shadow in the shape of a door. He also testified that the color blended right in and that he could not see it until "you were too close to be able to do anything else." All of the automobiles had their lights on.
Under such circumstances, the exceptions involving visibility of the object clearly applied rather than the general rule. Under the evidence here, the giving of the instruction requested by the plaintiff would not only have been confusing to the jury, it would have been prejudicial to the defendant and did not correctly state the law upon the issue presented by the pleadings and the evidence. It is not error to refuse a requested instruction if the legal principles therein announced are either incorrectly stated or inapplicable to the issues involved. Frazier v. Anderson, 143 Neb. 905, 11 N.W.2d 764.
The plaintiff made no specific request for any other explanatory instruction and the instructions given by the court fairly and properly presented to the jury the material matters and issues of negligence and ordinary care. The instructions specifically submitted to the jury the allegation that the defendant's driver was negligent in failing to drive so as to be able to stop within the range of his vision as one of the material allegations, and authorized a verdict for the plaintiff if the jury found the defendant's driver guilty of negligence in that respect. The instructions taken as a whole fairly submitted the issues of negligence and contributory negligence to the jury. In testing the sufficiency of the evidence to support a verdict, it must be considered in the light most favorable to the successful party, that is, every controverted fact must be resolved in his favor, and he should have the benefit of every inference that can be reasonably deduced therefrom. Schmeeckle v. Peterson, 178 Neb. 476, 134 N.W.2d 37.
It follows that the judgment was proper and is affirmed.
AFFIRMED.