Austinson v. Kilpatrick

• Decision Date: 18 August 1960
• Docket Number: No. 7835,7835
• Citation: 105 N.W.2d 258
• Parties: Sylvla AUSTINSON, Plaintiff and Respondent, v. Robert KILPATRICK and Sheriff's Ltd., Defendants and Appellants.
• Court: North Dakota Supreme Court

Page 258

105 N.W.2d 258

Sylvla AUSTINSON, Plaintiff and Respondent, v. Robert KILPATRICK and Sheriff's Ltd., Defendants and Appellants.

No. 7835.

Supreme Court of North Dakota.

Aug. 18, 1960.

Rehearing Denied Oct. 3, 1960.

Syllabus by the Court.

1. Subject to the qualification that he does so in the exercise of reasonable care, a driver of a motor vehicle upon a through highway has the right to anticipate that a driver approaching an intersection with the through highway upon an inferior highway will heed the stop sign by stopping and ascertaining if it is safe to proceed before entering the intersection.

2. Where a highway has been designated a through highway at an intersection with another highway by the erection of a stop sign at the entrance to the intersection from the inferior highway, the fact that the stop sign may thereafter be negligently or accidentally removed does not affect the rights or duties of a driver of a motor vehicle upon the through highway in the absence of knowledge on his part that the stop sign is not in place.

3. Where a driver of a motor vehicle approaches an intersection of through highway with the highway upon which he is traveling, he may, in the absence of a stop sign at the intersection or actual knowledge that the other highway is a through highway, assume that the highways are of equal status and that the law of right of way relating to intersections of highways of equal status is applicable and the failure of a driver, in such circumstances, to stop before entering the through highway is not negligence as a matter of law.

4. Questions of negligence and contributory negligence are ordinarily for the jury, and it is only where the evidence is such that reasonable men can draw but one conclusion therefrom that they become questions of law for the court.

5. Where the evidence in the case disclosed that a driver of a motor vehicle approached an intersection with another highway in such circumstances that he could assume that he had the right of way at the intersection, and the jury could have concluded as a reasonable inference from the evidence that such driver observed the driver on the intersecting highway start to slow down as he approached the intersection, the question of whether the first driver was negligent in assuming that the other driver would yield the right of way at the intersection was for the jury.

6. Where a motor vehicle, owned by a defendant is operated by an employee of such defendant in the manner in which such vehicle is usually operated in the course of such employee's employment, the jury may infer from such facts that the employee is acting within the scope of such employment.

7. Where it appears from the evidence that an employee was driving his employer's automobile upon his annual vacation, under a rental agreement with his employer, and that such use of the employer's vehicle took place in territory where the employer did no business whatsoever, there is no legitimate inference that the employee was acting within the scope of his employment.

8. Under the provisions of Section 39-0703, NDRC 1943, the establishment of through highways is accomplished merely by the erection of stop signs at the entries to such highways by competent authority. Once established as a through highway a highway continues to be a through highway at an intersection where the properly erected stop sign has been accidentally or negligently removed.

9. An instruction which has the effect of informing the jury that a driver upon a through highway has the duty to yield the right of way to a driver approaching an intersection with the through highway from the right is erroneous and prejudicial.

10. A refusal of an instruction which is inapplicable to the evidence in the case is not error.

11. Under the provisions of Section 39-0703 NDRC 1943, highways are through highways only at those intersections at which stop signs have been properly erected and evidence that a highway has been designated a through highway at one intersection is not proof that it has been so designated at any other intersection.

12. A compromise or settlement is not an admission of the validity or invalidity of a disputed claim. It is not binding on persons not parties to the settlement or in privity with a party thereto.

Day, Stokes, Vaaler & Gillig, Grand Forks, for defendants and appellants.

W. T. DePuy, Grafton, for plaintiff and respondent. Lyman Brink, Hallock, Minn., and Olson & Holmquist, Warren, Minn., of counsel.

BURKE, Judge.

Plaintiff brought this action to recover damages resulting from the death of her husband. In her complaint she alleged that he husband's death was proximately caused by the negligent operation of a motor vehicle by the defendant, Kilpatrick. She joined Sherriff's Ltd. as a party defendant and alleged that, at the time of the negligent operation of the motor vehicle by Kilpatrick, he was an employee of Sheriff's Ltd. and acting within the scope of such employment. The trial of the case resulted in a verdict and judgment in favor of the plaintiff. After judgment the defendants moved for judgment notwithstanding the verdict or for a new trial. This alternative motion was denied by the trial court and defendants have appealed from the order denying the motion and from the judgment.

As a ground for judgment notwithstanding the verdict both defendants urge that the evidence discloses that, as a matter of law, plaintiff's decedent's own negligence contributed proximately to cause his injury and death. As a further ground for judgment notwithstanding the verdict, the defendant, Sheriff's Ltd. contends that the evidence affirmatively establishes that the defendant, Kilpatrick, was not acting within the scope of his employment with Sheriff's Ltd. at the time of the death of plaintiff's decedent. We shall consider these grounds in the order stated.

Plaintiff's decedent met his death as the result of a collision between a car driven by him and a car driven by the defendant, Kilpatrick. The collision occurred at the junction of Highways 44 and 17 in Walsh County. Immediately prior to the collision Kilpatrick was proceeding northward on Highway 44 and Austinson was proceeding westward on Highway 17. Kilpatrick testified that, as he approached the intersection in question, he did not deliberately look to the right or left but that he 'took the intersection in view' as much as he could, 'which could be quite a distance through the front windshield' and that he 'didn't see any cars coming.' The surface of the highway was loose gravel and he was driving at about forty miles an hour. He first saw the Austinson car when it was directly in front of him. He stated 'I just saw a flash and there was the impact right there.' The Kilpatrick car struck the Austinson car broadside. The main force of the impact appears, from the pictures in evidence, to have been exerted against the left front door of the Austinson car. The collision occurred in the northeast quadrant of the intersection. The Austinson car, after the collision, came to rest in the ditch at the northwest corner of the intersection while the Kilpatrick car stopped on the highway. Its front wheels were on the west shoulder of Highway 44 and its rear wheels extended back to the north side of Highway 17. At the time of the collision the passengers in Kilpatrick's car were asleep. Austinson was killed so Kilpatrick was the only surviving witness. There is no evidence that either driver attempted to stop or take other action to avoid the collision. There were tracks leading back from the point of collision 76 feet eastward on Highway 17. There is no suggestion that these tracks were skid marks. It was assumed that they were indentations left by the wheels of the Austinson car in the loose gravel. It also appeared that a stop sign had been erected at the entry to Highway 44 from Highway 17 but that some workers, repairing the highway, had taken the sign down and that at the time of the collision the sign was lying in the ditch on the north side of the highway.

It is the defendant's contention that he was driving upon a through highway, that he had a legal right to assume that any traveler on the inferior highway would obey the law by stopping and assuring himself that it was safe to proceed before entering the through highway and therefore he was not negligent in proceeding as he did. It is also contended that Austinson was negligent as a matter of law, both in driving into Highway 44 directly in front of Kilpatrick and in not stopping before entering.

On the other hand, the plaintiff's urge that, since the stop sign was down, that at least in so far as Austinson was concerned, the intersection had ceased to be controlled, and that therefore Austinson, in approaching the intersection upon Kilpatrick's right had the right to assume that Kilpatrick would yield. It is also said that, since Austinson could not testify as to what he saw or what he did, it will be presumed that he acted with reasonable care.

The respective rights and duties of drivers approaching an intersection of a through highway with an inferior highway where the intersection is protected by a stop sign located on the inferior highway, are well settled. In such a case the driver upon the through highway does not have an exclusive privilege which would require those crossing it to do so at their own risk. Subject to the qualification that he does so in the exercise of reasonable care, he has the right to anticipate that a driver approaching on an inferior highway will heed the stop sign by stopping and ascertaining if it is safe to proceed before entering the intersection. Satterland v. Fieber, N.D., 91 N.W.2d 623; Marsden v. O'Callaghan, N.D., 77 N.W.2d 522.

In this case the circumstances pose the question of the extent to which these rights and duties are altered by the fact that the stop sign guarding the entry to the through highway from the...