In Anderson v. Nincehelser, 152 Neb. 857, 43 N.W.2d 182 (1950), the defendant struck and killed a person who was standing at a roadblock on the highway at night.
The defendant testified that he thought he saw a man in front of his car but was not positive where the man was. The plaintiff appealed a directed verdict for the defendant.
The court held that the defendant's possible negligence in failing to see the man in time was a jury question, stating:
The operator of an automobile equipped with headlights as required by statute, who does not observe a pedestrian until just before striking him, is not conclusively guilty of negligence. Under such circumstances it is clearly a question for the jury. . . . Whether the defendant was negligent in not sooner seeing the deceased and in not so operating his automobile with reference to the concurrent right of the deceased and himself upon the public highway as to avoid a collision was for the jury. Id. at 866, 43 N.W.2d at 187.