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SCHWARTZ v. HIBDON

No. 35266.

118 N.W.2d 327 (1962)

174 Neb. 397

Keith S. SCHWARTZ and Kenneth P. Schwartz, Executors of the Estate of Joseph Schwartz, Deceased, Appellants, v. B. R. HIBDON, first and real name unknown, d/b/a Oil Field Dozer Service and Kenneth Thompson, Appellees.

Supreme Court of Nebraska.

November 30, 1962.

Attorney(s) appearing for the Case

Heaton & Heaton, Sidney, Leon A. Sprague, Red Cloud, for appellants.

Halcomb, O'Brien & Everson, Harry R. Meister, Kimball, for appellees.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, SPENCER, BOSLAUGH and BROWER, JJ.

MESSMORE, Justice.

The opinion contains the following language: "We believe the question is not so much whether there was a submissible issue for a jury as whether Thompson was negligent as a matter of law." "He had a clear duty to exercise due care in attempting to pass the deceased. We do not believe he did. It is also evident he did not have his truck under reasonable control when he attempted to pass." "It may well be that when Thompson became

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