Axelson v. Jardine

• Decision Date: 07 January 1929
• Docket Number: Nos. 5530,5531.,s. 5530
• Citation: 223 N.W. 32,57 N.D. 524
• Parties: AXELSON v. JARDINE et al. MADSEN v. SAME.
• Court: North Dakota Supreme Court

57 N.D. 524

223 N.W. 32

AXELSON

v.JARDINE et al.

MADSEN

v.SAME.

Nos. 5530, 5531.

Supreme Court of North Dakota.

Aug. 10, 1928.

On Rehearing Jan. 7, 1929.

Syllabus by the Court.

Section 2976 l, C. L. 1913, regulating the speed of a motor vehicle on the public highway, is intended for the protection of the traveling public, and only those classes of persons for whose benefit the regulation was enacted can plead the violation and secure the advantages afforded by the general rule. But, even though the injury complained of is not within the statute, the disregard of statutory duty may be a material fact, and evidence of negligence which may be considered by the jury, together with all the facts and circumstances, in determining whether the violation of the speed statute contributed to the injury.

In an action for personal injury, where the evidence is conflicting or different inferences may reasonably be drawn from the facts shown, the question of the contributory negligence of the plaintiff is one for the jury.

Reasonable care on the part of the plaintiff in an action for personal injuries may be inferred from the circumstances.

A failure to erect barriers or to place lights or reasonably to guard obstructions to the public travel constitutes actionable negligence, for which the contractor is liable when it is the proximate cause of an injury to one lawfully using the highway.

In an action for personal injuries, where the evidence is conflicting or different inferences may reasonably be drawn from the facts shown, the question of the defendant's negligence is for the jury.

Additional Syllabus by Editorial Staff.

In action for personal injuries resulting when plaintiff's automobile passed into excavation dug across highway by defendant contractors, evidence as to negligence of defendants held to require submission to jury.

On Petition for Rehearing.

In action to recover for personal injury and property damage, by reason of automobile passing into excavation dug across highway, refusal of instruction, relative to duty of automobile driver to have car under such control that he could bring it to a standstill within distance he could plainly see objects ahead, held not erroneous under evidence clearly establishing that car could have been stopped within such distance.

Instruction, in action for injuries resulting from automobile passing into excavation dug across highway, relative to defendant's duty only to have used reasonable care in maintaining a lantern at place of excavation, held to sufficiently cover such issue.

Appeal from District Court, Cass County; M. J. Englert, Judge.

Separate actions by Elvin Axelson and by Marius Madsen against Alex Jardine and another, copartners doing business under the firm name and style of the Jardine Bridge Company, which were consolidated and tried as one case. Judgments for plaintiffs, and defendants appeal. Affirmed.

Conmy, Young & Burnett, of Fargo, for appellants.

Lovell & Horner, of Fargo, and I. A. Acker, of Hillsboro, for respondents.

BURKE, J.

The case of Elvin Axelson v. Alex Jardine and C. T. Yircott, copartners doing business under the firm name of Jardine Bridge Company, and the case of Marius Madsen against the same defendants, were consolidated and tried as one case in the district court, the facts being the same in each case, and they were argued in this court and submitted on the same briefs. They are actions for personal injury and for property damaged, when the plaintiff Axelson's car, driven by the plaintiff Madsen, passed into an excavation dug across the highway by the defendants. The plaintiff claims that the defendants were negligent in the manner in which they protected the public, or failed to protect the public, from the danger on account of the said excavation. There were verdicts for the plaintiffs in each case, upon which judgments were entered, and the defendants appeal.

The plaintiff Madsen was in the employ of the plaintiff Axelson as a separator man during the threshing season, and on the day of the accident they drove in Axelson's car from Larimore to the city of Fargo, a distance of about 125 miles, to get some concaves for the separator. They arrived in Fargo a little after 6 o'clock in the evening, got the concaves, and started back to Larimore about 10 o'clock in the evening, going back a different route, and intending to travel on the regular state highway from Fargo north. They got off the main highway on a detour, marked “Detour No. 1” with the regular Indian Head marker, and about 10:30 at night, while traveling west on “Detour No. 1,” a road in general use, on a section line, as they approached highway No. 1, they drove into an excavation which had been made for a culvert, 50 feet long, 4 feet deep, and 4 feet wide, extending clear across the road.

This excavation was made with scrapers, and the dirt was piled on either side of the ditch by the dumping of the scrapers, and it is the claim of the defendants that it was so placed for the protection of the public. As a further protection, the defendants placed a lighted lantern on the dirt on the west side of the ditch. A number of witnesses saw the light of the lantern during the evening, and the defendants found the lantern after the accident, lying by the side of the pile of dirt on the west side of the ditch. The plaintiff testified that they were driving about 20 to 25 miles per hour; that, when they were about a quarter of a mile from the ditch, they were traveling 23 miles an hour. It was a dark misty night, but there was an electric wiper on the windshield, which they used at times, and the driver could see from 50 to 75 feet ahead of him. He saw the dirt in the road, and thought that it was a raise in the road, as though the road was being newly surfaced. There were no lights at that time. The raise appeared to be a foot or a foot and a half high. When the car ran against the loose dirt, the driver applied the brakes, and the car seemed to balance, and was almost at a standstill when it dropped into the excavation, and the plaintiffs were injured and the car damaged. Madsen's testimony is corroborated by the testimony of Axelson.

Witness Anderson, testifying for the defendants, states that the piles of dirt on either side were about 4 feet high, that the dirt was about 9 or 10 feet from the ditch on each side; and he is corroborated by his son Carl Anderson. Alex Jardine testified that he went out there the next day and measured the piles of dirt. The one on the east side was slightly over 4 feet, and the one on the west side was slightly over 5 feet. The center of the pile on the east side was about 15 feet from the east edge of the ditch, and the center of the pile of dirt on the west side was about 10 feet from the west side of the ditch. The pile on the east side was about 12 or 14 feet from the edge of the pile on one side to the edge on the other; that is, this pile of dirt was about 12 or 14 feet wide from the east to the west, the direction in which the plaintiffs were traveling. The center of the pile of dirt on the east side being 15 feet from the east edge of the ditch, the dirt extended at least 6 feet farther east from the center of the pile, making the east side of the pile of dirt 21 feet from the east edge of the ditch. The ditch was 4 feet wide, and, according to Jardine's testimony the center of the pile of dirt on the west side where they placed the lantern was 10 feet from the ditch. The lantern was then 35 feet from the east end of the dirt on the east side.

The trial judge permitted Mr. Jardine to testify to his long years of experience in making excavations and in putting up barricades for the protection of the public, and that he always used the dirt obstruction when possible, that being in his judgment the best and safest, and that he always used a lantern as in this case.

[1] It is the contention of the defendants that the plaintiffs were guilty of negligence under section 2976 l, C. L. 1913, which prohibits a higher rate of speed than one mile in eight minutes in approaching an intersecting highway, and that the evidence shows that the plaintiffs were approaching an intersecting highway at a higher rate of speed than one mile in eight minutes.

Huddy on Automobiles, § 362, states the rule as follows:

“In case of the violation of a statute or municipal ordinance by an automobilist, only those classes of persons for whose benefit the regulation was enacted can plead the violation and secure the advantage afforded by the general rule. California-King v. San Diego Elec. Ry. Co., 176 Cal. 266, 168 P. 131; Iowa-Hansen v. Kemmish, 201 Iowa, 1008, 208 N. W. 277, 45 A. L. R. 498; Michigan-Johnston v. Cornelius, 200 Mich. 209, 166 N. W. 983, L. R. A. 1918D, 880; Minnesota-Westlund v. Iverson, 154 Minn. 52, 191 N. W. 253; Missouri-Anderson v. Wells, 220 Mo. App. 19, 273 S. W. 233; Ohio-Schell v. Du Bois, 94 Ohio St. 93, 113 N. E. 664, L. R. A. 1917A, 710;Marquard v. Moore, 1 Ohio Law Abs. 202; Tennessee-Carter v. Redmond, 142 Tenn. 258, 218 S. W. 217.”

In the case of Owens v. Iowa County, 186 Iowa, 408, 169 N. W. 388, the court said:

“It is quite apparent that the provisions of this statute were designed, primarily at least, to prescribe the duty of the driver of a motor vehicle, with reference to the person or property of another, and to provide safety therefor upon the public highway.”

In the case of Walters v. Seattle, 97 Wash. 657, 167 P. 124, the court held:

“The object of a traffic ordinance or statute regulating speed of vehicles at crossings is to protect pedestrians and other users of the street and to avoid collisions.”

And hence, in an action against the city for injuries resulting from the overturning of an automobile due to defective condition of the street, violation by plaintiff of a city ordinance cannot be relied on by the city as constituting negligence per se. See, also, the cases of Weart v. Stauffer, 19 Alta. L. 471 (1923) 2...