Stauffer v. School District of Tecumseh

473 N.W.2d 392, 238 Neb. 594, 1991 Neb. LEXIS 273

• Court: Nebraska Supreme Court
• Decided: July 12, 1991
• Docket: 88-1011
• Status: Published

Opinions

Boslaugh, J.

This is an appeal in a wrongful death action brought under the Nebraska Political Subdivisions Tort Claims Act, Neb. Rev. Stat. §§ 13-901 et seq. (Reissue 1987).

The plaintiff and appellant herein, Richard L. Stauffer, the personal representative of the estate of Theresa R. Stauffer, deceased, brought this action against the School District of Tecumseh to recover for Theresa Stauffer’s death in an intersectional collision with the school district’s schoolbus. The collision occurred on September 25,1986, at the intersection of two county roads about 1 mile north and 6 miles west of Tecumseh, Nebraska. The accident involved a pickup truck driven by Theresa Stauffer (hereinafter plaintiff’s decedent) from the north into the intersection in a southerly direction, and a schoolbus driven into the intersection by the defendant’s driver, Gary R. Peters, who was proceeding from the east to the west.

The schoolbus was a typical schoolbus painted yellow, 9 feet 6 inches tall and 22 feet 4 inches long.

In his petition, the plaintiff alleged that the defendant’s schoolbus driver was negligent (1) in failing to maintain a proper lookout, (2) in failing to maintain reasonable control of the schoolbus, (3) in failing to yield the right-of-way, and (4) in driving at an excessive speed for the conditions, and that his negligence was the proximate cause of the wrongful death of the plaintiff’s decedent. In its answer, the defendant admitted the accident occurred but alleged that the plaintiff’s decedent was guilty of contributory negligence sufficient to bar any recovery because she (1) failed to maintain a proper lookout, (2) failed to yield the right-of-way to the defendant’s schoolbus, (3) operated the pickup at a rate of speed greater than was reasonable and prudent under the conditions, and (4) failed to have her pickup under reasonable control.

At the conclusion of all the evidence the plaintiff moved for a directed verdict against the defendant, arguing that the defendant was negligent as a matter of law. Similarly, the defendant moved that the plaintiff’s petition be dismissed because the evidence showed as a matter of law the plaintiff’s decedent was contributorily negligent in a degree sufficient to bar any recovery. The trial court reserved ruling on these motions and eventually decided the case on its merits.

The trial court found that the defendant’s schoolbus driver, Peters, was negligent in his failure to keep a proper lookout, failure to yield right-of-way, and excessive speed for the conditions, and that such negligence was one of the proximate causes of the accident. The court further found that plaintiff’s decedent was contributorily negligent because of her failure to maintain a proper lookout and because she operated her pickup at an unreasonable rate of speed under the traffic conditions. The court concluded by holding that decedent’s contributory negligence, when compared with the negligence of the defendant’s driver, was more than slight and that the negligence of the defendant’s driver, when compared with that of the decedent, was less than gross, and awarded judgment to the defendant.

Following the trial court’s decision, the plaintiff filed motions for new trial and for judgment notwithstanding the verdict. Both motions were overruled. The plaintiff has appealed from the judgment for the defendant and from the denial of his motions.

The plaintiff’s assignments of error may be consolidated into one. The plaintiff contends the trial court erred in finding that the plaintiff’s decedent was guilty of contributory negligence sufficient to bar any recovery. This is essentially a finding of fact. The findings of the trial court in an action under the Political Subdivisions Tort Claims Act have the effect of jury findings and will not be disturbed on appeal unless clearly wrong. Kumar v. Douglas County, 234 Neb. 511, 452 N.W.2d 21 (1990); Ohnstad v. Omaha Public Sch. Dist. No. 1, 232 Neb. 788, 442 N.W.2d 859 (1989); Zeller v. County of Howard, 227 Neb. 667, 419 N.W.2d 654 (1988). Under this standard, we review the record and consider the evidence in the light most favorable to the defendant in order to determine whether the trial court was clearly wrong in its findings.

In this case there is no presumption that the plaintiff’s decedent was exercising due care. Such a presumption obtains only when there is no substantial evidence as to care or want of care on the part of the deceased. When there is such evidence, the presumption has no place in the case. Bush v. James, 152 Neb. 189, 40 N.W.2d 667 (1950).

The presumption of due care arising out of the natural instinct of self-preservation is not evidence but a mere rule of law and obtains only in the absence of direct or circumstantial evidence one way or the other on the subject. When such evidence is produced, the presumption disappears and may no longer be considered. Anderson v. Nincehelser, 153 Neb. 329, 44 N.W.2d 518.

Omaha Nat. Bank v. Omaha P. P. Dist., 186 Neb. 6, 10-11, 180 N.W.2d 229, 232 (1970).

The record shows that the accident took place on September 25, 1986, about 1 mile north and 6 miles west of Tecumseh, at the intersection of two open and uncontrolled gravel roads. The collision occurred at about 7:15 a.m. on a clear, dry day. The plaintiff’s decedent’s vehicle, a 1983 Chevrolet S-10 pickup, was traveling in a southerly direction on a north-south minimum-maintenance road. The defendant’s vehicle, a 1968 Chevrolet 36-passenger schoolbus, which was being driven by Peters, was westbound on an east-west gravel road with its headlights lighted. Both parties were familiar with the intersection.

The defendant’s schoolbus driver, Peters, testified that on the east-west road about a quarter of a mile east of the intersection there is a small, gradual incline leading up to the intersection. Peters testified that he had accelerated slowly as he approached the intersection because of this hill and that his bus was traveling about 40 miles per hour as it entered the intersection. Peters saw the decedent’s vehicle a “[s]plit second” before the collision. At that time his bus was at the fence line east of the intersection. He testified that the decedent’s vehicle was near the fence line north of the intersection when he first saw it. The vehicles collided near the center of the intersection. The front of the defendant’s schoolbus struck the pickup at the driver’s door or shortly behind it.

Photographs taken by Keith Rodaway, a Nebraska state patrolman, on the day of the accident and received in evidence, show scattered trees and bushes to the north and east of the intersection. The patrolman testified that there were two possible locations where the bus would be “completely hidden” as it approached the intersection, and on his official report stated that the “major reason for not seeing danger was trees for both vehicles.”

The photographs themselves indicate, however, that it is very doubtful the trees and bushes were sufficient to obscure the bus as it approached the intersection. In fact, although the plaintiff testified that there were “some good sized trees and brush,” he had stated in a deposition, “I think I did look to the left to see whether or not, you know, you’d be able to see a big yellow school bus coming and, in my opinion, there was no way of missing it.”

After impact, the pickup spun a full 180° in a counterclockwise direction, with its rear end rotating toward the west. The pickup spun and ended up facing north in the right-hand ditch, southwest of the intersection. The force generated from the collision caused the schoolbus to also spin 180° counterclockwise. When the wheels on the right side of the bus struck a ridge of dirt along the south side of the east-west road, a bolt in the steering mechanism of the right front wheel snapped and the bus fell over on its side. The bus came to rest lying on its right side, facing east just west of the intersection.

Trooper Rodaway, who investigated the accident, testified that there were no skid marks or evidence of evasive action to indicate that either driver had made an attempt to stop or swerve. The patrolman testified that when he arrived, some 2 hours after the accident occurred, he found the decedent’s vehicle in third gear. The plaintiff argues that this evidence suggests that the decedent attempted to slow down.

Peters testified that he went to the decedent’s vehicle immediately after the collision and found that the gearshift lever was “down” and that the vehicle was in “road gear.” The gearshift lever may have been moved later into third gear position to facilitate the removal of the decedent’s body from the passenger’s side of the vehicle.

Peters testified that when he first observed the decedent’s vehicle, it was just north of the east-west fence line north of the intersection. He further testified that at that time, his bus was about even with the north-south fence line east of the intersection. Peters then testified that he had measured the distance from a cornerpost where the two fence lines intersect to the road edges and that the distance from the cornerpost to the east edge of the north-south road was 23 feet 8 inches and the distance from the cornerpost to the north edge of the east-west road was 26 feet. This evidence suggests that the plaintiff’s decedent was traveling at a rate of speed approximately the same as that of the defendant’s driver just before the impact.

Although the plaintiff’s decedent approached the intersection from the right,

[a] car approaching an intersection is not in a favored position and entitled to proceed regardless of the circumstances merely because [it] is on the right of the other car....

... [A] driver approaching an unprotected intersection where he knows and can readily observe that his view is obstructed must do so at such a speed as will afford him a reasonable opportunity to make effective observations for cars approaching on the intersecting road and give him a reasonable opportunity to properly react to the situation he then observes or could observe, and where his view is completely obstructed and his speed is such that he has given himself no opportunity at all to observe and react appropriately he may, where the facts are undisputed, be found negligent as a matter of law.

Hodgson v. Gladem, 187 Neb. 736, 742-43, 193 N.W.2d 779, 783 (1972). Accord, Crink v. Northern Nat. Gas Co., 200 Neb. 460, 263 N.W.2d 857 (1978); Schenk v. Yosten, 229 Neb. 691, 428 N.W.2d 510 (1988).

The right-of-way granted by the statute is relative and the duty of avoiding collisions at uncontrolled intersections rests upon both drivers.

Although the plaintiff’s decedent’s view to the left was partially obstructed as she approached the intersection, she nevertheless proceeded into the intersection at a speed which the trial court could find was unreasonable. Under the holding in Hodgson, supra, it was the decedent’s duty, her directional right-of-way notwithstanding, as well as that of the defendant’s busdriver, to “approach the intersection at such speed that each may effectively exercise an option on how to proceed as may be indicated by circumstances when they reach a point where they can see.” Hodgson, supra at 740, 193 N.W.2d at 782. The plaintiff’s decedent’s failure to do so amounted to contributory negligence in a degree sufficient to bar recovery. See Hodgson, supra. See, also, Schenk v. Yosten, supra; Zeller v. County of Howard, 227 Neb. 667, 419 N.W.2d 654 (1988).

Pearson v. Richard, 201 Neb. 621, 271 N.W.2d 326 (1978), involved a factual situation very similar to that in this case. The Pearson case arose out of a collision at an uncontrolled intersection of county roads. An automobile driven by the plaintiff’s decedent approached the intersection from the north. A milk truck driven by the defendant approached the intersection from the east. The trial court submitted the issues of the plaintiff’s decedent’s contributory negligence in failing to keep a proper lookout and maintain reasonable control of her vehicle to the jury, which returned a verdict for the defendant. On appeal the judgment was affirmed.

In the Pearson case the point of impact was near the center of the intersection. After the impact the vehicles veered to the southwest into a field on the southwest corner of the intersection. At the time of the accident the milk truck was traveling at 40 to 45 miles per hour. No skid marks from either vehicle were found.

In the Pearson case we said at 627, 271 N.W.2d at 329-30:

[I]n 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, and 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. Costanzo v. Trustin Manuf. Corp., 176 Neb. 136, 125 N.W.2d 556 (1963); Flanagin v. DePriest, 182 Neb. 776, 157 N.W.2d 389 (1968). Negligence is a question of fact and may be proven by circumstantial evidence and physical facts. . . . Where there is a reasonable dispute as to what the physical facts show, the conclusions to be drawn therefrom are for the jury. The credibility of witnesses and the weight to be given their testimony are solely for the consideration of the jury. Price v. King, 161 Neb. 123, 72 N.W.2d 603 (1955).

In the Pearson case we further stated at 629, 271 N.W.2d at 330:

While it is questionable whether, in the instant case, the circumstantial evidence and physical facts were sufficient to warrant a finding by the court as a matter of law that the decedent was guilty of contributory negligence more than slight, we need not reach that issue for the reason that we conclude that in any event the evidence was sufficient to warrant the submission of the issue of decedent’s contributory negligence to the jury, which was done, and the jury has decided the issue by its verdict. The law is well established in this state that when a motorist enters an intersection of two highways he is obligated to look for approaching motor vehicles and to see those within that radius which denotes the limit of danger. If he fails to see a car which is favored over him under the rules of the road, he is guilty of contributory negligence sufficient to bar a recovery as a matter of law. If he fails to see an automobile not shown to be in a favored position the presumption is that its driver will respect his right-of-way and the question of his contributory negligence in proceeding to cross the intersection is a jury question.

The plaintiff contends that the trial court erroneously admitted the testimony of the defendant’s driver concerning the position of the decedent’s vehicle. Peters testified that he saw the decedent’s vehicle a “ [s]plit second” before the collision and testified as to the respective positions of the vehicles relative to the fence lines running east-west and north-south at the intersection. This testimony was rationally based upon his perceptions and, as such, was admissible. See Neb. Rev. Stat. § 27-701 (Reissue 1989). The defendant’s driver testified that he had firsthand knowledge of the positions of the decedent’s vehicle and his bus a “[s]plit second” before impact. Furthermore, he personally revisited the accident site, observed that conditions appeared the same as they had on the date of the accident, and then personally took measurements from the cornerpost to the respective road edges. The trial court did not abuse its discretion by admitting evidence which was rationally based upon the perceptions of the defendant’s driver.

In any event, this was a trial to the court, and it is presumed that the trial court, in reaching its decision, disregarded any evidence which was inadmissible. See, Suess v. Lee Sapp Leasing, 229 Neb. 755, 428 N.W.2d 899 (1988); Jeffres v. Countryside Homes, 220 Neb. 26, 367 N.W.2d 728 (1985); Abel v. Southwest Cas. Ins. Co., 182 Neb. 605, 156 N.W.2d 166 (1968).

The plaintiff also contends that apart from Peters’ testimony, there was no evidence to establish that the decedent was driving at an unreasonable rate of speed. The circumstantial evidence concerning the positions of and the damage to the vehicles following the collision was some evidence as to the speed of the pickup when the vehicles collided. The positions of the vehicles at the time of impact is shown by the marks made by two “tow hooks” located on the bus’ front bumper when they creased the pickup’s left side door. The tow hooks, which were bent to the left, or south, by the force of the collision, are some indication of the pulling effect the motion of the pickup had upon the bus. It was a matter for the trier of fact to draw the inferences and conclusions from the evidence. Based on the foregoing evidence, when considered in the light most favorable to the defendant, the trial court could find that the plaintiff’s decedent was traveling at an unreasonable rate of speed under the conditions and that the plaintiff’s decedent was guilty of contributory negligence sufficient to bar any recovery.

The judgment of the trial court is affirmed.

Affirmed.