## Facts

- C. E. Colton was injured in an automobile collision at Eddy and Division Streets in Grand Island, Nebraska.
- Eddy Street was an arterial street protected by stop signs; Division Street traffic was required to stop before entering Eddy.
- Colton drove south on Eddy (the favored street); Matthew Benes drove east on Division and entered the intersection, colliding with Colton.
- Colton alleged Matthew Benes failed to stop and yield and otherwise drove negligently (including inadequate lookout and control).
- Defendants denied negligence and alleged Colton was contributorily negligent (including inadequate lookout, failure to brake, and failure to swerve left to avoid the collision).
- Colton claimed neck and back injuries; an orthopedic surgeon recommended a cervical fusion, describing approximate cost, hospitalization time, and a reasonable chance of success, but without evidence detailing operative risks or expected pain and suffering.
- Colton testified he wanted the surgery but could not afford it.

## Issues

1. Whether the evidence supported submitting Colton’s contributory negligence to the jury where he traveled on a favored arterial protected by stop signs.
2. Whether the evidence supported instructing the jury that Colton could have mitigated damages by undergoing recommended surgery absent proof of the surgery’s hazards and expected pain and suffering.
3. Whether any instructional errors required reversal and, if so, whether retrial should be limited to damages.

## Decision

- The Nebraska Supreme Court held it was prejudicial error to submit contributory negligence to the jury because the record did not support a reasonable finding that Colton was at fault.
- The court held it was prejudicial error to instruct on mitigation by surgery because there was no evidentiary basis concerning the extent of surgical hazards or the pain and suffering involved.
- The judgment on the jury verdict for Colton ($3,376.40) was reversed, and the cause was remanded for a new trial limited to damages.

## Legal Principles

- A motorist approaching a stop-sign-protected arterial must stop, look, and yield to favored traffic when conditions make entry imprudent.
- A motorist on a favored highway with knowledge of stop-sign protection may assume cross-traffic will obey the stop sign unless and until the motorist has warning, notice, or knowledge to the contrary.
- A trial court should submit to the jury only issues of fact supported by the pleadings and evidence; submitting an unsupported issue is generally prejudicial error.
- Contributory negligence is an affirmative defense; the defendant bears the burden of proving plaintiff fault, and negligence requires evidence of fault.
- A driver must keep a reasonable lookout toward anticipated danger but is not required to maintain a constant lookout in one direction.
- A personal-injury plaintiff’s duty to mitigate does not require submission to treatment involving substantial hazard of death or injury, unduly painful treatment, or treatment offering only a possibility of cure.
- Whether a plaintiff should have mitigated damages by submitting to an operation should not be submitted to the jury absent evidence of the operation’s hazards and the pain or suffering involved.

## Conclusion

The court reversed because the jury was permitted to consider unsupported defenses—contributory negligence and mitigation by surgery—and remanded for a new trial on damages only, leaving liability effectively established on the record presented.


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