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Boesiger v. Huber12/16/2003
(not designated for permanent publication)
INTRODUCTION
Pamela L. Boesiger sued Kenneth A. Huber for personal injuries and damages suffered in a rural intersection accident. Visibility for traffic approaching the intersection was obstructed to some degree, and Boesiger approached from the right. The Lancaster County District Court found as a matter of law that Huber was negligent and that Boesiger was not, and submitted only the issue of damages to the jury. Huber appeals from the judgment entered, alleging that the district court erred in directing the verdict in Boesiger's favor. We conclude that the district court erred in entering a directed verdict, and reverse, and remand for a new trial.
BACKGROUND
Boesiger alleged in her petition that on May 19, 2000, at approximately 4:25 p.m., she and Huber were involved in a motor vehicle accident; that Huber was negligent in failing to keep a proper lookout, in failing to keep his vehicle under reasonable control, in driving at a rate of speed greater than was reasonable and proper, in failing to decrease his speed, and in failing to yield the right-of-way; and that the accident was directly and proximately caused by Huber's negligence. Huber filed an answer, admitting that he and Boesiger had been involved in an accident, but denying Boesiger's other allegations. He affirmatively alleged that Boesiger was negligent in failing to keep a proper lookout, in failing to keep her vehicle under reasonable control, and in driving at a speed greater than was reasonable and prudent. Boesiger filed a reply to Huber's answer, essentially denying Huber's allegations.
The controlling issue in this appeal is whether the evidence would support a finding that Boesiger was contributorily negligent. As stated below, the scope of review requires that if there is any evidence which will sustain a finding for Huber, we must reverse. See Suiter v. Epperson, 6 Neb. App. 83, 571 N.W.2d 92 (1997). We shall therefore summarize the evidence in the light most favorable to him.
The collision occurred on May 19, 2000, which was a dry and sunny day, around 4:25 p.m. at the intersection of 25th Street and Pella Road. Both are rural roads approximately 23 feet wide with gravel surfaces. There are stop signs controlling westbound and northbound traffic entering the intersection, but none for eastbound and southbound traffic. The speed limit on both roads is 50 m.p.h. Boesiger approached the intersection traveling east on Pella Road in a 1989 Pontiac sedan, and Huber approached traveling south on 25th Street in a 1994 Chevrolet pickup truck.
There are trees to the north and to the west of the intersection. Both parties were familiar with the road they traveled, and each testified that they could not see traffic approaching the intersection in the direction from which the other party approached. Both parties called it a blind intersection. Photographs in evidence showed that the closest obstruction to visibility was a tree that appeared to be several feet back from a cornerpost northwest of the intersection.
The collision occurred in the southwest quadrant of the intersection. The front of Huber's vehicle struck the side of Boesiger's vehicle with the center of the impact being slightly to the rear of the center post of the sedan.
At trial, Boesiger stated that she was traveling about 35 m.p.h. at the time of the accident. Boesiger testified that she did not recall whether she slowed down before entering the intersection. She stated that she did not remember the actual impact, but that she recalled seeing the grill and hood of another vehicle out of the corner of her eye. Boesiger's d
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