268 N.W. 430 (N.D. 1936), 6379, Hausken v. L.R. Coman And Northwest Construction Company

Docket Nº6379
Citation268 N.W. 430, 66 N.D. 633
Opinion JudgeBURKE
Party NameFLORENCE M. HAUSKEN, Respondent, v. L.R. COMAN and Northwest Construction Company, a Corporation, Appellants
AttorneyConmy & Conmy, for appellant. Murtha & Murtha, for respondent.
Judge PanelBurke, Ch. J. Christianson, Morris and Nuessle, JJ., concur. Burr, J. (Dissenting.) BURR BURR, J. (Dissenting.)
Case DateApril 27, 1936
CourtSupreme Court of North Dakota

Page 430

268 N.W. 430 (N.D. 1936)

66 N.D. 633

FLORENCE M. HAUSKEN, Respondent,

v.

L.R. COMAN and Northwest Construction Company, a Corporation, Appellants

No. 6379

Supreme Court of North Dakota

April 27, 1936

On Rehearing July 16, 1936, Reported at 66 N.D. 633 at 657.

Page 431

Appeal from the District Court of Burleigh County, Jansonius, J.

Reversed and remanded for new trial.

Conmy & Conmy, for appellant.

The statute puts the necessity of continuous observation on the driver when approaching an intersection and a like necessity upon a pedestrian in crossing the street elsewhere than at a crossing. Clark v. Feldman, 57 N.D. 741, 224 N.W. 167; Szekeres v. Detroit Motorbus Co. 252 Mich. 46, 232 N.W. 700; Gobes v. Cutting Larsen Co. 178 N.Y.S. 338; Deal v. Snyder, 203 Mich. 273, 168 N.W. 974.

Plaintiff who was guilty of contributory negligence cannot rely upon the negligence of the defendant. Filson v. Balkins (Cal.) 268 P. 445; Crowl v. West Coast Steel Co. (Wash.) 186 P. 867.

A pedestrian in cartway of street must look in both directions for approach of vehicles, and is not absolved from the duty of looking in the direction from which traffic approaches before or while crossing the opposite side of the cartway. Weaver v. Pickering (Pa.) 123 A. 777; Dobrowolski v. Henderson (La.) 130 So. 239; McLeod v. Kjos (Wash.) 274 P. 180.

Where the negligence of the plaintiff, without which the injury could not have been sustained, continued till the moment of the collision, and where any negligence of the defendant had ceased to be operative, the plaintiff's negligence, and not that of the defendant, is the proximate cause of the injury. State ex rel. Workmen's Comp. Bd. v. Great Northern R. Co. 54 N.D. 400; Legum v. State, 173 A. 566; Correnti v. Catino, 160 A. 892; Juergens v. Front, 163 S.E. 619; Gimeno v. Martin, 220 P. 1076; Moran v. Smith, 95 A. 272.

The consequences of the negligent act must be within the range of probability as viewed by the ordinary man, and consequences which are merely possible cannot be regarded as either probable or natural. Ft. Smith Gas Co. v. Doud, 75 F.2d 413; St. Mary's Hospital v. Scanlon, 71 F.2d 739; Davis v. Schroeder, 291 F. 47.

The evidence must affirmatively establish circumstances from which the inference fairly arises that the accident resulted from the want of some precaution which the defendant ought to have taken. Wabash, St. L. & P.R. Co. v. Locke, 112 Ind. 404, 14 N.E. 391, 2 Am. Rep. 193; Garraghty v. Hartstein, 26 N.D. 148, 143 N.W. 390; Pisarek v. Singer Talking Mach. Co. (Wis.) 200 N.W. 676; Best v. Adams (Ky.) 28 S.W. 485; Adams v. Parrish (Ky.) 225 S.W. 469; Allen v. Johnson, 144 Minn. 333, 175 N.W. 545; Quinn v. Heidman, 195 N.W. 775.

The general rule that one who is confronted by a sudden emergency due to the negligence of another is not held to the same accuracy of judgment as would be required of him under ordinary circumstances applies where danger of a collision at an intersection suddenly looms up. 42 C.J. p. 1002; Switzer v. Baker, 178 Iowa 1063, 160 N.W. 372.

Murtha & Murtha, for respondent.

A pedestrian using the public highways is not negligent in acting on the assumption that drivers of automobiles will exercise reasonable care to avoid injuring him and that they will observe the law. Berry, Automobiles, 1926 ed. p. 280; Lewis v. Tanner (Cal.) 193 P. 287.

Questions of negligence and contributory negligence are for the jury. Park v. Orbeson (Cal.) 184 P. 428; Saunders v. Yellow Cab Co. 182 Minn. 62, 233 N.W. 599.

Whether plaintiff was negligent in failing to watch for approaching cars was for the jury. Cusick v. Miller, 171 P. 599.

Burke, Ch. J. Christianson, Morris and Nuessle, JJ., concur. Burr, J. (Dissenting.)

OPINION

BURKE

Page 432

[66 N.D. 637] This is an action for personal injury. From a judgment in favor of the plaintiff the defendants appeal.

The complaint alleges that on the 6th day of November, 1934 Hans Jacob Hausken, the husband of the plaintiff, was lawfully, and with the exercise of due care, proceeding on foot upon that certain highway known as U.S. Highway No. 10, at a point thereon at the easterly edge of the city limits of the city of Glen Ullin, North Dakota, crossing from the south to the north thereon and being about 8 feet from the northernmost edge of said highway, which highway at this point runs east and west. The said L. R. Coman at said time and place aforesaid and while acting as agent, employee, and servant of the defendant corporation aforementioned and while transacting their business as aforesaid, and while in charge of and driving the said automobile as aforesaid, then and there operated, drove, and managed the said automobile in a careless, negligent, and wanton manner, so that the same was violently propelled against the said Hans Jacob Hausken causing the said car to collide with the said Hans Jacob Hausken and causing the [66 N.D. 638] said Hans Jacob Hausken to be violently struck and killed as the result of said collision and negligence of said L. R. Coman.

The answer admits that the defendant Construction Company is a corporation and denies generally every other allegation in the complaint and specifically denies that plaintiff's husband was injured because of defendants' negligence and alleges the fact to be that his said injury was occasioned by the said negligence of plaintiff's husband and his own negligence contributed thereto.

It is conceded that the defendant Coman, at the time of the injury, was acting for and on behalf of the defendant Construction Company, a corporation.

On the morning of the 6th of November, 1934 the defendant was driving his automobile on highway No. 10, approaching the city of Glen Ullin from the west. There is a dispute over the width of highway No. 10 in the city of Glen Ullin, but the defendant introduced in evidence a photograph, Exhibit 1, which is conceded to be a photograph of the street where the accident occurred in the city of Glen Ullin at the time of the accident, except that the automobile between the pumps and the Standard Oil Filling Station was not there at that time; that space being unoccupied. From this photograph,

Page 433

(which we include herein,) it appears that there are no gutters and the entire space between the curbs was used as a public highway.

Subdivision (n) of § 1, chapter 162, Session Laws of 1927, the Uniform Motor Vehicle Act, defines "highway" as "Every way or place of whatever nature open to the use of the public, as a matter of right, for the purposes of vehicular travel. The term 'highway' shall not be deemed to include a roadway or driveway upon grounds owned by private persons, colleges, universities or other institutions." Subdivisions (s) of § 1 of said chapter defines "business district" as "The territory contiguous to a highway when fifty per cent or more of the frontage thereon for a distance of three hundred feet or more is occupied by buildings in use for business."

There was no attempt to show by direct evidence that the accident happened in a business district, but the evidence does show three oil stations, a mill and elevator, and restaurant and the photograph shows a number of business houses to the east.

The defendant came from the west. Joe Gietzen, testifying for the [66 N.D. 639] plaintiff, said that he was at the Texaco Filling Station on the north side of the street (not shown in the photograph) and west of where the accident happened. "I judge that Coman was traveling about 30 miles an hour when he passed the filling station. When Mr. Coman was about 75 or 80 feet from Mr. Hausken he honked his horn. The road at that point was about 60 feet wide. Coman at that time was about 10 or 12 feet from the north side of the road. Mr. Coman stopped as quick as he could stop. I should say the skid tracks turned slightly to the right, extending all the way to the car. At the point where Hausken and Coman met it was about 13 or 14 feet to the north edge of the road from the car tracks closest to the north. When the car stopped it was on the right hand side of the street, right in front of the roller mill, mostly on the right side of the road, just straddling a little. When Mr. Coman honked his horn Mr. Hausken jumped back about three steps, I believe 8 or 9 feet.

"Q. What part of the car hit Hausken?

"A. More to the left side of the car, the bumper. . . .

"Q. Do you know whether or not there is a roadway or place where vehicles have or can pass to the west of these roller mills and near the point of this accident? . . .

Page 434

"A. . . . It is not what you call an alley or street, it is a common pass way.

"It is about 70 or 80 feet from the point where the skid tracks began to where Mr. Hausken was hit. At the time of the accident I was standing at the Texaco Filling Station. It was 150 or 160 feet from where I was standing by the filling station to where the accident happened. The driveway to the Standard Oil Filling Station is about thirty feet wide. When Coman honked the horn Hausken had about three steps to go across and he turned back. He was going kitty cornered in a northeasterly direction. When he heard the horn blow he jumped up, three his head around, looked west and east and then stepped back as fast as he could make it and ran right in front of the car. If Hausken had not stepped back he would not have been hit. The highway is wider where the accident happened on account of the approach to the Standard Oil pumps. Hausken came from the west and walked north to the pump. He came along on the south side of the street walking up on the north side of the pumps where the [66 N.D. 640] opening is...

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