Vannett v. Cole

Decision Date11 January 1919
Citation41 N.D. 260,170 N.W. 663
PartiesVANNETT v. COLE et al.
CourtNorth Dakota Supreme Court
OPINION TEXT STARTS HERE
Syllabus by the Court.

Under section 2972, Compiled Laws 1913, it is the duty of an auto driver who has observed a pedestrian about to cross a street crossing in front of his automobile, while operating the same upon the public streets of a city, to give warning of his approach by bell or by horn, if thereby injury can be avoided.

Under the doctrine of respondeat superior a husband is liable for the negligent operation of an automobile owned by him and driven by his wife with his full acquiescence and consent, for purposes of business or pleasure of the family.

In an action for personal injuries sustained by collision with an automobile, evidence held to require the submission of the question of defendant's negligence and plaintiff's contributory negligence to the jury.

Where the plaintiff in an action for injuries is struck and knocked down senseless by collision with an automobile, held, under the evidence, the maxim raised, res ipsa loquitur, does not apply.

Appeal from District Court, Cass County; A. T. Cole, Judge.

Action by Elizabeth Mary Vannett against E. H. Cole and another. Judgment for defendants on a directed verdict, and plaintiff appeals. Reversed and a new trial ordered.

Christianson, C. J., dissenting.

Smith Stimmel, of Fargo, for appellant.

Lawrence & Murphy, of Fargo, for respondents.

BRONSON, J.

This is an action to recover damages for personal injuries. On November 15, 1916, about midday, the plaintiff, a woman of 71 years, was struck and knocked down senseless by the automobile of the defendant, E. H. Cole, then being operated by his wife.

At the time the plaintiff was walking south upon the sidewalk along the easterly side of Broadway avenue, between the Great Northern tracks and the Viking Hotel in the city of Fargo. Mrs. Cole was driving the automobile westward along the street that intersects Broadway avenue and extends up and beyond the Great Northern Depot. As the plaintiff proceeded upon the crosswalk at the intersection of such street and avenue, she was hit by such automobile, then running at a speed not to exceed 4 or 5 miles per hour, and which theretofore, 60 feet of such crossing, was not exceeding a speed of 10 miles per hour. There was a clear, unobstructed view from such crosswalk to the east along such street.

At the close of plaintiff's case the trial court granted a motion of the defendants for a directed verdict based upon absence of proof of defendant's negligence and upon the proof of plaintiff's contributory negligence, and, from the judgment entered thereupon, the plaintiff prosecutes this appeal.

Plaintiff assigns as error the direction of such verdict, and other errors of law during the trial.

[1][2][3] The record is short; the evidence meager. There is no evidence of any actionable negligence in the operation of such automobile at the time, contrary to the provisions of the speed ordinance of the city of Fargo, or at an excessive rate of speed.

The only serious question raised by this record is whether the defendant Mrs, Cole, after observing the position of the plaintiff on the crosswalk, owed a duty to her, in the exercise of ordinary care to avoid injury, to give warning by sounding the horn or ringing the bell, required by statute to be on such automobile, and whether the record discloses any issue of fact for submission to the jury concerning the breach of such duty.

The evidence concerning this matter is to the effect that Milligan, a police officer of Fargo, was standing in front of the Great Northern Hotel, which is directly opposite from the place of the accident; that this is a busy part of the city, much traveled; that he was looking right at the car and saw the plaintiff; that he first saw Mrs. Cole, the driver of the car, about 60 feet east of the crossing, not exceeding a speed of 10 miles per hour; that she slowed down as she approached the crossing, and when she was about 20 feet therefrom the plaintiff started across; that the plaintiff saw the car and stepped back toward the railroad tracks; that then the automobile was going about 4 or 5 miles per hour; that the driver apparently saw Mrs. Vannett and then started ahead; that “Mrs. Vannett started across in front of the car, but when just about in front of it she stopped again, and the car hit her.”

The plaintiff testified that she was walking very slowly on this crosswalk, and did not see or hear any auto, except that she saw one auto standing about 3 feet to her left.

The police officer further testified that he did not hear any ringing of any bell or blowing of any horn. Another witness testified that she saw the plaintiff walking very slowly and just ready to cross when the automobile hit her, and that the automobile came from toward the depot toward Broadway, and that it was not going awfully fast.

By statutory provision every automobile shall be provided with a bell or horn. Section 2972, Compiled Laws 1913. This statute further provides that such bell or horn shall be rung or blown by the driver when operating outside of a city or village when approaching from behind a vehicle propelled by animals. Such provision, however, does not mean to imply that when an automobile is being operated within a city or village, upon the highways therein, a horn or bell is a useless appendage, and that no duty in any case devolves upon the operator to use the same. Forgy v. Rutledge, 167 Ky. 182, 189, 180 S. W. 90, 94.

We can imagine no use to which a bell, horn or other signal device attached to an automobile could be put, except to give suitable signals of the approach of the machine, where such signals would be necessary for the safety of persons traveling upon the public highway, and manifestly the necessity for their use on the streets of a city or town is greater than in the country. The necessity for their use is implied from the provision requiring motor vehicles to be supplied with them. This proposition is too plain for argument.” Forgy v. Rutledge, supra.

In Gifford v. Jennings, 190 Mass. 54, 76 N. E. 233, the defendant came up from behind the plaintiff without blowing his horn. It was held that this made a proper case for the jury upon which they were warranted in finding that the defendant was negligent in not sounding his horn.

It is plainly the duty, therefore, of every automobile owner to make use of the horn or bell required by statute whenever under the circumstances, in the exercise of ordinary care, injury can be avoided to pedestrians, upon the streets or highways of the city by a timely warning given.

The operator of an automobile is not necessarily exempt from liability for injuries occasioned in a public street of a city by simply showing that at the time such automobile was not exceeding the limit of speed permitted by ordinance or law. There is still the duty imposed on such driver to anticipate that he may meet pedestrians on the public highways, who have a lawful right there to be, and for them he must keep a proper lookout, using his ordinary senses and instrumentalities then possessed, so as to avoid injuries to them. Hennessey v. Taylor, 189 Mass. 583, 76 N. E. 224, 3 L. R. A. (N. S.) 345, 4 Ann. Cas. 396;Kathmeyer v. Mehl (N. J. Sup.) 60 Atl. 40;Kessler v. Washburn, 157 Ill. App. 532;Ouellette v. Motor Works, 157 Wis. 531, 147 N. W. 1014, 52 L. R. A. (N. S.) 299;Schnabel v. Kafer, 39 S. D. 70, 162 N. W. 935.

The record presents a close question as to the existence of any evidence to raise an issue of fact concerning this duty of the automobile driver. However, the question of...

To continue reading

Request your trial
15 cases
  • Grenz v. Werre
    • United States
    • North Dakota Supreme Court
    • July 13, 1964
    ...damages occasioned by the negligent operation thereof, while it was being used by a member of his family for said purposes. Vannett v. Cole, 41 N.D. 260, 170 N.W. 663; Ulman v. Lindeman, 44 N.D. 36, 176 N.W. 25, 10 A.L.R. 1440; Bryan v. Schatz, 77 N.D. 9, 39 N.W.2d We conclude, therefore, t......
  • Thomas v. Newman, 76-284
    • United States
    • Arkansas Supreme Court
    • July 11, 1977
    ...an automobile be equipped with a horn, implies that it should be used when necessary for the safety of pedestrians. Vannett v. Cole, 41 N.D. 260, 170 N.W. 663 (1919); Roberts v. Cain, 365 P.2d 1014 (Okl., 1969). The phrase "to insure safe operation" in the statute has been held to mean oper......
  • Posey v. Krogh
    • United States
    • North Dakota Supreme Court
    • April 9, 1935
    ...“family car doctrine” is applicable and then cite a large number of cases to show the extent of the doctrine, such as: Vannett v. Cole et al., 41 N. D. 260, 170 N. W. 663;Ulman v. Lindeman, 44 N. D. 36, 176 N. W. 25, 10 A. L. R. 1440;Miller v. Kraft, 57 N. D. 559, 223 N. W. 190;Kayser v. Va......
  • Foster v. Farra
    • United States
    • Oregon Supreme Court
    • February 23, 1926
    ... ... Squires, 119 ... S.E. 569, 186 N.C. 339; Ulman v. Lindeman, 176 N.W ... 25, 44 N.D. 36, 10 A. L. R. 1440; Vannett v. Cole, ... 170 N.W. 663, 41 N.D. 260; Dillingham v. Teeter, 216 ... P. 463, 91 Okl. 165; Crouse v. Lubin, 103 A. 725, ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT