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Law School Case Brief

Colton v. Benes - 176 Neb. 483, 126 N.W.2d 652 (1964)


A motorist traveling on a favored highway protected by a stop sign of which he has knowledge may properly assume that oncoming traffic will obey it. A user of highways may assume that other users thereof will use them in a lawful manner and govern his acts in accordance with such assumption unless or until he has warning, notice, or knowledge to the contrary. A motorist approaching a highway protected by stop signs must stop before going upon the highway, must look to his left and to his right, and must permit a motor vehicle which is proceeding along the highway protected by stop signs to pass if it is at a distance and is traveling at a speed making it imprudent for the motorist to proceed into the intersection. Negligence, which is the moving or effective cause of a happening, is the proximate cause thereof. A trial court is required to submit to a jury for its determination only the issues of fact presented by the pleadings and supported by evidence, and it is generally prejudicial error for the trial court to present to the jury for its determination any issue of fact for which there is no proof.


Plaintiff C.E. Colton and defendant Matthew Benes were involved in an automobile accident. Thereafter, Colton filed lawsuit against Matthew and defendant Louis Benes in Nebraska state court seeking to recover damages for injuries he sustained in the accident. According to Colton, Matthew was driving an automobile that was jointly owned by him and Louis. Colton claimed that Matthew was negligent in a number of respects, including, inter alia, that Mathew failed to keep a proper lookout; failed to keep his vehicle under reasonable control; and failed to yield the right-of-way to the Colton's vehicle. Matthew denied any negligence and alleged contributory negligence on the part of Colton in several respects, including, inter alia, that he failed and neglected to keep a sufficient lookout and failed and neglected to timely apply his brakes to avoid colliding with Matthew's vehicle. The jury returned a verdict for Colton in the amount of $ 3,376.40. Colton filed a motion for new trial, which was overruled. Colton appealed, arguing that there was insufficient evidence to submit the issue of his contributory negligence to the jury.


Did the trial court err in submitting the issue of contributory negligence to the jury?




The state supreme court reversed the trial court's judgment and remanded the case for new trial on the issue of Colton's damages. The court ruled that the Beneses failed in their proof of Colton’s contributory negligence and it was error for the trial court to submit the issue of contributory negligence to the jury. The collision was caused by the failure of Matthew to observe the stop sign at an intersection and his assumption that his automobile had the directional right-of-way. The trial court, by submitting the issue of contributory negligence, instructed the jury that it might reduce its verdict. Thus, a new trial on damages was warranted. On the retrial, all reference to Colton receiving a pension were to be avoided. An instruction on Colton's need to submit to an medical operation should be given only if there was evidence showing the extent of the hazards to Colton growing out of the operation contemplated. Mitigation of damages being defensive in nature, the burden of proving Colton should submit to an operation to lessen his damage was upon the Beneses.

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