dissenting.
Before and after the collision Kohl’s car was in good mechanical condition. Never had there been any malfunction of the accelerator of Kohl’s 1976 Chevrolet with 55,000 miles. Yet, inexplicably, the car’s “footfeed by itself went down,” causing Kohl’s automobile to burst through the window of a beauty shop and travel “up to the driers.” Proper function of the footfeed-accelerator was immediately restored by some unknown and unmentioned means, however, as moments later Kohl backed her car out of the beauty shop, away from the dryer where Kahrhoff had been seated, and experienced no difficulty in backing her car to a site where she encountered a police officer who “was there right as soon as I got stopped.”
Nebraska has had a' long-standing rule consisting of conjunctive duties: a motorist must keep a lookout for objects in plain view and operate a motor vehicle in such a manner to avoid colliding with an object within the operator’s range of vision. Failure to fulfill such requirement was negligence as a matter of law. See O'Conner v. Kientz, 184 Neb. 554, 168 N.W.2d 703 (1969). See, also, Newkirk v. Kovanda, 184 Neb. 127, 165 N.W.2d 576 (1969).
“The basis of the foregoing general rule is that the driver of an automobile is legally and mandatorily obligated to keep such a lookout that he can see what is plainly visible before him and to operate his automobile in such a manner that he can stop it and avoid collision with any object in front of him.”
(Emphasis supplied.) Stanley v. Ebmeier, 166 Neb. 716, 729, 90 *747N.W.2d 290, 298 (1958).
When the dual duties of Nebraska’s lookout-control rule are applied in this case, vehicular malfunction is essential to the majority’s position. A postaccident inspection disclosed that the brakes on Kohl’s car were “all right.” Nothing indicated that the brakes were inadequate to halt the automobile or overcome the engine’s action. Further, there was no competent evidence of accelerator malfunction in Kohl’s car. Even the indefinite testimony about an absent “little cog” causing the accelerator to “stick” sheds no light on the cause of the accelerator’s self-activation increasing the car’s speed from 5 or 10 miles per hour to an unspecified speed at impact. Nevertheless, according to the majority, existence of accelerator malfunction is established by a pseudosyllogism: Kohl says so; therefore, it is. Thus, Kohl’s uncorroborated statement about the self-activated accelerator is elevated to the stature of sufficient proof of an unforeseeable malfunction requiring Kohl’s reactive efforts in addition to applying brakes to stop her automobile such as, the majority surmises, “turning off the racing engine or shifting the automobile out of gear.” In reality, the rather ordinary and basic measure of applying appropriate pressure on the pedal for properly functioning brakes was all the situation demanded. Evaluating reasonableness of responsive action to a malfunctioning accelerator, where there was no competent evidence of a malfunction or any additional preventive efforts taken by Kohl, injects an illusory issue as the result of a phantom fact. Discrediting or disproving what has not occurred may be somewhat difficult.
In automotive annals the phenomenon of the self-activated accelerator on Kohl’s car will mystify mechanics for years to come, perhaps forever. In the meantime, in Nebraska’s automobile negligence law, the more fantastic and imaginative a motorist’s excuse for not avoiding a collision with an observed or observable object, the less mandatory the duty regarding plain view and control.
Kohl was negligent as a matter of law in operating her automobile, and a directed verdict in favor of Kahrhoff on the issue of liability was required under the circumstances. The district court’s action in this regard should have been affirmed.