Drivers to exercise due care with
pedestrian; audible signal.
Notwithstanding the other provisions
of the Nebraska Rules of the Road, every driver of a vehicle shall exercise
due care, which shall include,
but not be limited to, leaving a safe distance of no less than three feet
clearance, when applicable, to avoid colliding with any pedestrian
upon any roadway and shall give an audible signal when necessary and shall
exercise proper precaution upon observing any child or obviously confused
or incapacitated person upon a roadway.
Source:Laws 1973, LB 45, § 44; R.S.1943, (1988), § 39-644; Laws 1993, LB 370, § 205; Laws 2012, LB1030, § 1.
In order for a driver to be held to the higher standard of care in this section, there must be evidence both that the person was actually confused or actually incapacitated and that such condition was objectively obvious to a reasonable driver. State v. Welch, 275 Neb. 517, 747 N.W.2d 613 (2008).
This section does not except the operation of section 39-643, which pertains to the duty of care required by a pedestrian who crosses the street between intersections. Hines v. Pollock, 229 Neb. 614, 428 N.W.2d 207 (1988) (pursuant to Laws 1993, LB 370, section 250, language from section 39-643 was placed in section 60-6,154).
This section merely sets out a higher standard of care in the situations described therein; intoxicated plaintiff was not an "obviously confused or incapacitated person" within the meaning of the statute. Hines v. Pollock, 229 Neb. 614, 428 N.W.2d 207 (1988).
Defendant failed to exercise due care when he failed to see a pedestrian who was in plain sight near a crosswalk and struck her with the cement truck he was driving. This section is not unconstitutionally vague. Due care under the section means the absence of negligence. State v. Mattan, 207 Neb. 679, 300 N.W.2d 810 (1981).
A driver who is aware that a pedestrian standing on the curb is a 78-year-old with poor eyesight is compelled under this section to maintain a proper lookout and to exercise due care. Dutton v. Travis, 4 Neb. App. 875, 551 N.W.2d 759 (1996).