dissenting.
This decision holds that the admission of the evidence of Engler as to the speed of the truck was prejudicial, and the judgment is reversed.
The point involved is'one which will come up frequently, and in my opinion is not free from doubt.
There are any number of decisions that, in considering the speed of an automobile and the competency of a witness to testify thereto, permit one to take into' consideration skid marks and circumstances portraying the physi*134cal facts immediately after the accident, and a person seeing the crash, basing his opinion on all of the conditions and circumstances as he saw them, and virtually following through the accident, should be permitted to testify.
“The question as to the opportunity of a witness to judge, under the particular circumstances, the speed of an automobile, has been held, as a general rule, to go to the weight of his testimony rather than to its admissibility.” 5 Am. Jur. 860, sec. 651.
“Statements based upon observation of witnesses who. saw the progress of the car do not constitute the sole medium of proof upon this point. Various factors, such as skid marks, distance traveled after impact, force of impact, etc., are pertinent in arriving at an estimate of the rate of speed of an automobile.” 5 Am. Jur. 850, sec: 630.
“It is clear that one who has had experience with objects moving at speed, as an experienced railroad engineer, or one who has operated an automobile for some time and observed the speedometer, may testify as to the speed of an automobile, and the opinion may be based on the distance it skidded.” Babbitt, Motor Vehicle Law (4th ed.) 1670, sec. 2306.
“It is not essential to establish the negligence of a motorist, who has injured a traveler in the operation of his machine, that eyewitnesses of the accident be produced. Circumstantial evidence may constitute adequate proof of negligence.” 10 Blashfield, Cyclopedia of Automobile Law and Practice (Perm, ed.) 152, sec. 6555.
“It has been held that a witness will not be permitted to give his opinion of the speed of an automobile upon a particular occasion, where he was not an observer, and the only information he has on which to base his estimate is the track of the machine on the pavement. On the contrary, such evidence has been held to be proper. The distance which a certain car has skidded in the attempt to stop it should furnish some basis for the opinion of an expert, and skid- marks may be considered by the jury *135on the question of speed.” 15-16 Huddy, Cyclopedia of Automobile Law (9th ed.) 347, sec. 180.
We find the case of Lewis v. Miller, 119 Neb. 765, 230 N. W. 769, in which it was held: “A witness who has shown himself qualified to give an opinion as to the speed of a moving automobile may express an opinion as to the speed a car is moving, although the same be coming directly toward him, such fact not affecting the competency of his testimony but rather the weight to be given the same.”
Our court in the case of Showers v. Jones Co., 126 Neb. 604, 253 N. W. 902, held: “Where the rate of speed of an automobile is the question, the time and place with reference to the scene of the accident as of which evidence is admissible rests largely in the discretion of the court, and, unless abused, its ruling will not constitute reversible error.”
In the case of Patterson v. Kerr, 127 Neb. 73, 254 N. W. 704, our court, in considering the proposition of speed, stated: “The defendant was competent to testify as to the speed of the car. ‘A witness who sees a moving car, and possesses a knowledge of time and distance, is competent to express an opinion as to the rate of speed.’ ”
In the discussion upon this proposition in the same case, the court cites and quotes the case of Owens v. Iowa County, reported in 186 Ia. 408, 169 N. W. 388, wherein it was held: “Testimony of one, several hundred yards directly in front of an automobile in the nighttime, as to the speed thereof, might be of little value, but should not be excluded on that account.” (169 N. W. 388.)
When an independent observer of a moving object expresses an opinion as to speed, the testimony is received and appraised according to the means of the observer and the standards he has. Coffee v. Omaha & C. B. Street R. Co., 79 Neb. 286, 112 N. W. 589.
Arthur Engler operated a filling station at the southwest corner of the intersection where the collision occurred. He was standing at his cash register, heard the *136crash, instantly looked out of the window, saw the cloud of dust, and saw the truck continue east, taking the. automobile with it. The truck dropped the car off, and kept going around ,50 to 55 feet from where the collision occurred. “Q. When you saw this Ford 8 truck going into that intersection, do you know about how fast that truck was traveling? A. I do. Q. What is that opinion? A. I would judge right at 40 to 45 miles an hour.” He testifies that there was a telephone pole at the southeast corner of the street on the south side, and that he saw the truck as it shattered the base of the pole and left it swinging back and forth; that after the truck broke off the telephone pole, which was 8 to 10.inches through, it continued on east in its course about 38 feet before it came to a stop.
If a close observer watches a heavy truck pushing a lighter car along for some distance, then it veers off and cuts off a heavy telephone pole, and then he sees it continue 38 feet after doing that until it can be brought to a stop, he has observed sufficient of the speed, power, and momentum of such truck.to be able to give the jury a positive idea .of the speed of. the truck just before the crash as it came into the intersection. It would be physically impossible for a car moving at 5, 10, 20, or 30 miles an hour to do the things which this witness saw the car do, and from the physical facts which he observed, and from his experience with cars and judging speed, it does not appear to me that it was prejudicially erroneous for him to give his estimate of the speed of the car just before the crash.
But, assuming that the witness Engler could not testify to the speed, yet the undisputed evidence is that Knoche was in the intersection first, had made his turn to the left, and was proceeding in the direction in which he had a perfect right to- go, and which right the law gave him. The defendant had, under the circumstances, no business in the intersection at that time and under the conditions. It would make no difference about the brakes, or the speed, or anything else in this connection. He just did *137not have a right to be there under the law, and certainly the only question would be the amount of damage, if any, that the widow of this blacksmith, killed by this truck, would be entitled to recover. This apparently is all there is to the lawsuit: The rights of the respective parties in the intersection. Defendant’s own witness placed Knoche there, stated he gave the signal, and 'there is no evidence to the contrary. In my opinion, the judgment should have been affirmed.