Summary
In McClellen v. Dobberstein, 189 Neb. 669, 204 N.W.2d 559 (1973), the defendants' driver abandoned his garbage truck in the roadway, heading north, when it ran out of gas. No lights or warnings were on the truck.
Summary of this case from Converse v. MorseOpinion
No. 38435.
Filed February 23, 1973.
1. Appeal and Error. Consideration of a cause on appeal is limited to errors assigned and discussed. 2. Appeal and Error: Judgments. It is not the duty of a reviewing court to search the record for the purpose of ascertaining if there is prejudicial error; every reasonable presumption will be indulged in favor of the correctness of the judgment that is entered; and any ruling alleged to be prejudicially erroneous must be specifically pointed out. 3. Trial: Instructions: Verdicts. Generally, any alleged errors in instructions occurring in the course of a trial are irrelevant, if the jury arrived at a verdict consistent with a directed verdict that should have been granted. 4. Motor Vehicles: Negligence. The driver of an automobile is legally obligated to keep such a lookout that he can see what is plainly visible before him and he cannot relieve himself of that duty. 5. ___: ___. The existence and presence of smoke, snow, fog, mist, blinding headlights, or other similar elements which materially impair or destroy visibility are not to be deemed intervening causes, but rather as conditions which impose upon the drivers of automobiles the duty to assure the safety of the public by the exercise of care commensurate with such surrounding conditions. 6. Motor Vehicles: Negligence: Highways. Where an object on the highway in front of one driving thereon at night is so nearly the color of the road that it may be difficult to distinguish until quite close, it cannot be said, as a matter of law, that such person was guilty of contributory negligence.
Appeal from the district court for Buffalo County: S. S. SIDNER, Judge. Affirmed and cross-appeal dismissed.
Tye, Worlock, Tye, Jacobsen Orr, for appellant.
Knapp, Tarrell, State Yeagley, for appellees.
Heard before WHITE, C.J., SPENCER, BOSLAUGH, SMITH, McCOWN, NEWTON, and CLINTON, JJ.
The appeal here is by the plaintiff from a $25,000 personal injury judgment resulting from a rear-end motor vehicle collision on Avenue M just outside Kearney, Nebraska. The gist of the plaintiff's appeal is the contention that there was error in several instructions and that he was entitled to a directed verdict on the issue of liability. The defendants have cross-appealed contending that the plaintiff was guilty of contributory negligence as a matter of law and that the action should be dismissed. We affirm the judgment of the district court and dismiss the cross-appeal.
Only the facts necessary for a disposition of this appeal will be set out in this opinion. The defendant Moreno, an employee of Dobberstein, abandoned a garbage truck owned by Dobberstein in the right side of the roadway of Avenue M because it was out of gas, placed no warning devices around it, and notified no one of its presence. It remained there until sometime during the evening. Between 10 minutes of 12 o'clock midnight and 1 a.m. two Kearney police officers in a cruiser stopped to investigate the truck. The unlighted truck was parked facing north on the east side of the roadway. The cruiser was parked on the west side of the street approximately two car lengths north of the front of the northbound truck. The southbound cruiser lights were on low beam and there was ample room for vehicular traffic to pass between the truck and the cruiser from either direction. The officers finished checking the truck and at that time saw the plaintiff's car coming over the south end of a bridge about 1,800 feet or 6 city blocks south of the location of the truck. One of the officers testified that, recognizing the danger, he took a two-cell flashlight, equipped with a red tone and ran down the road, swinging the flashlight horizontally so both a red and a white light showed, for the purpose of stopping the plaintiff. He reached a point about a block south of the parked truck in the plaintiff's lane of travel. He estimated the speed of the plaintiff's car at 50 to 55 miles per hour; that there was no decrease in speed of the plaintiff's car from the time it crossed the bridge; and that the car never varied in its path until the impact. The plaintiff admitted seeing lights on the road to the north when he came over the bridge. He did not know whether they were on bright beam but testified that they blinded him. He never saw the officer or the flashlight or heard any verbal warning. He never reduced his speed, never saw the parked truck, and looked to the right side of the road to avoid looking at the bright lights. He realized the car with the bright lights was stationary when he was about 4 blocks from it.
The trial court submitted the issues of negligence and contributory negligence to the jury. The jury resolved these issues in favor of the plaintiff. The difficulty of the plaintiff's position arises from this fact. The plaintiff assigns as error and argues error in instructions Nos. 2, 3, 6, and 16, all relating to the issues of liability. Neither in the plaintiff's assignments of error nor in his argument in his brief does he assert or argue the insufficiency or inadequacy of the jury verdict on damages, nor assert nor argue that the verdict is not supported by the evidence. The plaintiff recovered a substantial verdict in the sum of $25,000. The matter of the insufficiency or inadequacy of the verdict is not before us for judicial review and cannot be considered. It is elementary that consideration of a cause on appeal is limited to errors assigned and discussed. Revised Rules of the Supreme Court, 1971, Rule 8a 2 (3); 25-1919, R.R.S. 1943; United States Nat. Bank v. Feenan, 182 Neb. 524, 156 N.W.2d 29. It is further apparent, in light of the amount of the recovery in this case in the sum of $25,000, together with the failure of plaintiff to assert in any fashion by assignment of error or argument in his brief any inadequacy of the verdict, that our consideration of the case does not come within the exception of a plain error appearing in the record. Points not covered by any assignment of error will not be considered by this court. Cook v. Lowe, 180 Neb. 39, 141 N.W.2d 430. It is not the duty of a reviewing court to search the record for the purpose of ascertaining if there is prejudicial error; every reasonable presumption will be indulged in favor of the correctness of the judgment that is entered; and any ruling alleged to be prejudicially erroneous must be specifically pointed out. Kasparek v. May, 182 Neb. 582, 156 N.W.2d 144. These rules follow and are consistent with the fundamental law that a judgment will not be reversed unless prejudicial error affirmatively appears from the record. It is incumbent upon the party appealing from the judgment to show prejudicial error to entitle it to reversal. Workman v. Workman, 174 Neb. 471, 118 N.W.2d 764; Blair v. Klein, 176 Neb. 245, 125 N.W.2d 669. The plaintiff contends that he is entitled to a directed verdict on the issue of liability. Again this contention must fail since, having prevailed, he does not assign or assert any error in the amount of the verdict. We have recently held that any alleged errors in instructions occurring in the course of a trial are irrelevant, if the jury arrived at a verdict consistent with a directed verdict that should have been granted. Van Ornum v. Moran, 186 Neb. 418, 183 N.W.2d 759.
Plaintiff alleges and assigns error in the admission of exhibit 57, being a map or diagram of the accident area. Again it is clear, under the authorities already set out in this opinion, that such error, if present, could not possibly be prejudicial to the plaintiff, inasmuch as the jury resolved the question of liability in the plaintiff's favor.
The plaintiff assigns as error the failure of the trial court to give his requested instruction No. 11, which in effect, directed the jury that it was proper for it to take into consideration the low purchasing power of the dollar. There are two answers to this assignment of error. In the first place, as we have pointed out, error is not assigned with reference to the amount of the verdict, nor is it asserted in argument that the verdict of the jury in the sum of $25,000 is in any way inadequate. It is true that the jury can consider such a factor in arriving at the amount of the verdict but this court has specifically held that it is not a proper subject for an instruction. Segebart v. Gregory, 160 Neb. 64, 69 N.W.2d 315. There is no merit to this contention.
A much more serious question is presented by the defendants' cross-appeal. The defendants contend, in substance, that the plaintiff does not come within the exceptions to the range of vision rule, and was guilty of contributory negligence as a matter of law, barring recovery, in failing to see and avoid collision with the parked garbage truck. They rely upon the basic statement of the rule in Buresh v. George, 149 Neb. 340, 31 N.W.2d 106, in which we said that the driver of an automobile is legally obligated to keep such a lookout that he can see what is plainly visible before him and he cannot relieve himself of that duty. In conjunction therewith, he must so drive his automobile that when he sees the object he can stop in time to avoid it. The defendants argue that the court, in the application of this rule, must disregard the plaintiff's testimony as to the fact that his vision was blinded momentarily by the lights of the police cruiser. It is true that this court has said many times the existence and presence of smoke, snow, fog, mist, blinding headlights, or other similar elements which materially impair or destroy visibility are not to be deemed intervening causes, but rather as conditions which impose upon the drivers of automobiles the duty to assure the safety of the public by the exercise of care commensurate with such surrounding conditions. Nichols v. Havlat, 140 Neb. 723, 1 N.W.2d 829. See, also, Shields v. County of Buffalo, 161 Neb. 34, 71 N.W.2d 701.
We are of the opinion that the facts in this case bring it within the exceptions to the rule and that the trial court properly determined the issues were submissible to the jury. We have stated that an exception applies to situations where the object, obstruction, or depression is of the same color as the roadway, and for that reason, or for other sufficient reasons, cannot be observed by the exercise of ordinary care in time to avoid a collision. Guerin v. Forburger, 161 Neb. 824, 74 N.W.2d 870; Guynan v. Olson, 178 Neb. 335, 133 N.W.2d 571; Adamek v. Tilford, 125 Neb. 139, 249 N.W. 300; Haight v. Nelson, 157 Neb. 341, 59 N.W.2d 576. We have consistently held that where an object on the highway in front of one driving thereon at night is so nearly the color of the road that it may be difficult to distinguish until quite close, it cannot be said, as a matter of law, that such person was guilty of contributory negligence. Giles v. Welsh, 122 Neb. 164, 239 N.W. 813; Monasmith v. Cosden Oil Co., 124 Neb. 327, 246 N.W. 623.
The factual argument of the defendants as to the plaintiff's negligence is very persuasive on the merits. But the only question that is presented to us, under well-recognized rules as to a directed verdict, is whether there are sufficient conflicts or inferences under the evidence in the case to warrant a jury to find for the plaintiff under the comparative negligence rule. As we have stated (see Guynan v. Olson, supra) the cases in which a court is warranted to submit a rear-end collision situation to the jury generally embraces facts and situations involving factors which might reasonably be considered to relieve a driver of the duty to see the object or vehicle in time to avoid it. More precisely, the question is usually presented as to whether a driver, in order to escape the rule of stopping within the range of vision of a discernible object, is excused for not seeing the vehicle or object in the road ahead of him sooner than he actually did and was unable to escape the collision. The evidence is undisputed that the unlighted parked truck, in the middle of the plaintiff's roadway, was covered with tar, gravel, and dirt, and that the box of the truck was dark green in color. The roadway was unlighted. It is also undisputed that the defendant Moreno abandoned the truck in the roadway and he did not place any flares, flags, flashers, or other warning devices on the road to warn oncoming travelers of the presence of his abandoned truck. These facts would seem to bring the case clearly within the exceptions announced in the rules we have recited and particularly to the factual situations present in Monasmith v. Cosden Oil Co., supra, and Giles v. Welsh, supra. In essence, the defendants seek to escape the application of the exceptions to the rule by arguing quite forcefully that the lights of the police cruiser and the activity of the officers in attempting to stop the plaintiff bring the case back within the application of the rule. We feel that the questions of the relative location of the police cruiser, the degree of brightness or dimness of its lights, the question of the plaintiff's conduct when facing this quite unusual situation, and the credibility of his testimony to the effect that he did not see the officer's flashlight or hear the verbal warning properly present questions for the jury under all the circumstances. It is true that the plaintiff did not decrease his speed, did not see the parked truck until he was immediately upon it, that he did see the headlights of the police officer's cruiser, at least 1,700 feet prior to the time of the collision. We point out that this is not simply a question of blinding lights as being an excuse for not being able to see a vehicle ahead in your lane of traffic on the highway. We have held many times that it is not. But what we do hold is that the combination of circumstances presenting the judgment problem to the plaintiff of where the stationary police cruiser car was, its relation to the parked truck which alone by itself would have presented a jury question, his speed, and the credibility of his testimony as to his failure to heed the warnings of the police officer presents a combination of circumstances from which a jury was entitled to form a judgment as to whether he was contributorily negligent. The trial court properly submitted the issue of contributory negligence to the jury.
We come to the conclusion that the assignments of error are without merit and that the verdict of the jury and the judgment of the trial court should be affirmed. The judgment of the trial court is therefore affirmed and the cross-appeal of the defendant dismissed.
AFFIRMED AND CROSS-APPEAL DISMISSED.