Fitzmaurice v. Fitzmaurice
| Citation | 242 N.W. 526,62 N.D. 191 |
| Decision Date | 30 April 1932 |
| Docket Number | 6014 |
| Court | United States State Supreme Court of North Dakota |
Appeal from the District Court of Renville County Kneeshaw, J. Action for damages. From a judgment for the plaintiff, defendant appeals.
Affirmed.
Robert H. Bosard, for appellant.
Wife cannot maintain an action against her husband to recover damages for his negligent tort. Woltman v. Woltman, 189 N.W. 1022.
Husband cannot maintain an action against his wife to recover damages for her negligent tort. Drake v. Drake, 177 N.W 624; Strom v. Strom, 98 Minn. 427, 107 N.W. 1047, 6 L.R.A.(N.S.) 191, 116 Am. St. Rep. 387; Thompson v Thompson, 218 U.S. 611, 54 L. ed. 1180, 30 L.R.A.(N.S.) 1153; Freethy v. Freethy, 42 Barb. 641; Longendyke v. Longendyke (N.Y.) 44 Barb. 367, 6 L.R.A.(N.S.) 192; Libby v. Berry, 74 Me. 286, 43 Am. Rep. 589; Abbott v. Abbott, 67 Me. 304; Osburn v. Keister (Va.) 96 S.E. 316, 1 A.L.R. 439; Banderfield v. Banderfield (Mich.) 40 L.R.A. 757; Austin v. Austin, 136 Miss. 61, 100 So. 591, 33 A.L.R. 1388; Rogers v. Rogers, 265 Mo. 200, 177 S.W. 382; Butterfield v. Butterfield, 195 Mo.App. 37, 187 S.W. 295, 197 S.W. 374; Lillienkaup v. Rippetoe (Tenn.) 179 S.W. 628, L.R.A.1916D, 881, Ann. Cas. 1917C, 901; Heyman v. Heyman, 19 Ga.App. 634, 92 S.E. 25; Schultz v. Christopher, 65 Wash. 496, 118 P. 629, 38 L.R.A.(N.S.) 780; Peters v. Peters, 156 Cal. 32, 103 P. 219, 23 L.R.A.(N.S.) 699; Van Laszewski v. Van Laszewski (N.J.) 133 A. 179.
One who rides in an automobile as a gratuitous guest of the driver thereof is required to exercise such care as is reasonable and practicable to avoid injury to himself. Eddy v. Wells, 59 N.D. 663, 231 N.W. 785.
It is a duty of a passenger, on approaching a railroad track, to exercise reasonable precaution for his own protection. Hancock v. Norfolk & W.R. Co. 149 Va. 829, 141 S.E. 849.
A duty devolved upon him (the passenger) to remonstrate with the driver of the car against going on the track if and when it became or should have become apparent to him that a train was approaching. Parker v. Southern P.R. Co. (Cal.) 269 P. 622; Harding v. Jesse, 189 Wis. 652, 207 N.W. 708; Glick v. Baer, 185 Wis. 268, 201 N.W. 782; Kesler v. Davis (Kan.) 27 P. 799; Nobel v. Chicago, M. & St. P.R. Co. 298 F. 381.
J. E. Bryans, H. E. Johnson and Thomas F. Clifford, for respondent.
The test whether a decision is within the discretion of the court is whether or not the question may be decided either way. Kohlman v. Hyland, 58 N.D. 772, 219 N.W. 228.
The question for contributory negligence is for the jury when the evidence is conflicting, or when the facts are in dispute, if different minds might draw different conclusions from them. Mares v. Northern P.R. Co. 21 N.W. 5; Sherlock v. Minn. St. P. & S.S.M.R. Co. 138 N.W. 976; Schaffer v. Arkansas Valley Interurban R. Co. (Kan.) 179 P. 323.
Persons riding in a buggy or automobile who have no control over the vehicle are not necessarily negligent because the driver is negligent. Senft v. West Maryland R. Co. (Pa.) 92 A. 583.
Until the driver evidences an intention to act negligently or in violation of law, he may assume that the driver will properly drive and exercise due care. Huddy, Auto. 8th ed. § 823.
The wife may sue the husband for a tort under the statute conferring on her the right of feme sole. Fitzpatrick v. Owen, 186 S.W. 832, L.R.A.1917B, 774; Crowell v. Crowell, 180 N.C. 516, 105 S.E. 205; Roberts v. Roberts, 185 N.C. 566, 118 S.E. 9, 29 A.L.R. 1479; Proser v. Proser, 114 S.C. 45, 102 S.E. 787; Bushnell v. Bushnell (Conn.) 131 A. 432, 44 A.L.R. 785.
This is an action brought by a wife to recover damages from her husband for personal injuries alleged to have been suffered by her because of his negligence.
The case was tried to a jury. At the close of the plaintiff's case and again at the close of the whole case, defendant moved for a directed verdict on the ground that the evidence failed to establish negligence on the part of the defendant; that the plaintiff was herself guilty of contributory negligence; and that an action by a wife to recover damages for personal injuries resulting on account of the negligence of her husband does not lie under the statutes of the state of North Dakota. This motion was resisted and denied. Plaintiff had a verdict. Thereafter defendant moved for judgment notwithstanding the verdict or for a new trial. This motion was denied and judgment was entered on the verdict. Hence this appeal.
In September, 1930, plaintiff accompanied her husband, the defendant, to town. He drove an automobile. On their return it was necessary to cross a line of railroad. As they approached the railroad from the south it was possible to see easterly along the track for a long distance, excepting for some five or six hundred feet just before they reached the track, whence the view to the east was obstructed by a grain elevator and by a string of box cars. At this crossing there were three tracks. First on the south, the house track, on which were the box cars, then a passing track, and last, to the north, the main track. The main track and the house track were about thirty-five feet apart. The defendant was driving at a rate of about twenty-five miles per hour. He drove past the box cars and discovered a gasoline propelled train approaching the crossing from the east. The operator of the train sounded a warning signal just as defendant passed the box cars. Before that neither defendant nor plaintiff had seen or heard the train. Plaintiff saw the approaching train first, screamed and called defendant's attention to it. It is inferable from the record that the defendant believed the train was approaching on the passing track and that he could cross ahead of it, so he increased the speed of his automobile. He reached the passing track and then discovered that the train was on the main track. It was too late to stop, so he continued across and the train hit the rear end of his car as it passed over the main track. The plaintiff was very severely injured. If either plaintiff or defendant had looked as they approached the crossing and before the view became obstructed they would have been able to see the approaching train. However, neither of them looked. Both were acquainted with the crossing. The train made very little noise and of course no smoke arose from it. Defendant contends that under these circumstances it must be said, as a matter of law, either that there was no negligence on his part, or, though there was, that since the plaintiff had the same opportunity as he had to look and discover the approaching train and was acquainted with the crossing and knew the danger attendant on passing over it, she was, in any event, guilty of contributory negligence.
Questions of negligence and of contributory negligence are questions of fact for the jury unless there can be no reasonable division of opinion respecting them. Martin v. Parkins, 55 N.D. 339, 213 N.W. 574. It seems to us, that under the facts as disclosed in the instant case, both these questions were for the jury. Certainly the question of the defendant's negligence was. And it does not follow, as the defendant argues, that if he was negligent, plaintiff also must have been. Plaintiff as not driving. While she knew of the crossing and the possible dangers attendant on passing over it, she had no control of the automobile. She may have believed that after crossing the house track there would still be time to stop if there were any danger. So whether failure to look when she was more than five or six hundred feet from the crossing was negligence, was for the jury to determine. On the other hand, when she discovered the approaching train, she immediately called the defendant's attention to it. He apparently thought he could cross ahead of the train and attempted to do so. Possibly he then could have stopped had he tried to do so. Since plaintiff was not operating the automobile she cannot be charged with his fault. She called his attention to the train. She could do no more. Accordingly, these questions were properly submitted to the jury. This was the view that the trial court took and accordingly he refused to grant defendant's motion as based on those grounds.
But the principal ground urged by the defendant in the lower court, and the one on which he now chiefly relies, is that the plaintiff has no cause of action; that under the law of this state plaintiff, as the wife of the defendant, cannot recover against him on account of his negligence which resulted in her injury.
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