Bagan v. Bitterman, 6327.

• Decision Date: 13 March 1935
• Docket Number: No. 6327.,6327.
• Citation: 259 N.W. 266,65 N.D. 423
• Parties: BAGAN v. BITTERMAN et al.
• Court: North Dakota Supreme Court

65 N.D. 423

259 N.W. 266

BAGAN

v.BITTERMAN et al.

No. 6327.

Supreme Court of North Dakota.

Feb. 20, 1935.

Rehearing Denied March 13, 1935.

Syllabus by the Court.

1. Contributory negligence is a complete bar to recovery for damages sustained in a collision shown to have been caused by the negligence of another.

2. The testimony in this case showing plaintiff was guilty of contributory negligence, the judgment in his favor is reversed.

Appeal from District Court, Stutsman County; R. G. McFarland, Judge.

Action by Emmett Bagan against Fritz Bitterman, Jake Bitterman, and Philip Rivinius, partners doing business as the Streeter Garage, wherein first-named defendant filed a counterclaim. Judgment for plaintiff, and defendants appeal.

Reversed, and action dismissed.

J. A. Coffey, of Jamestown, for respondent.

Knauf & Knauf, of Jamestown, for appellants.

BURR, Judge.

This is an action for damages alleged to have accrued on October 26, 1933, because of a collision between an automobile driven by the plaintiff and a truck owned by defendants. Judgment against all of the defendants was rendered in the sum of $73 and costs.

At the close of the plaintiff's case defendants moved for a directed verdict on the ground that the testimony failed to “show facts to substantiate the allegations of the complaint” and that the plaintiff was guilty of contributory negligence. This motion was denied and was renewed at the close of the entire case.

Defendants made a motion for judgment notwithstanding the verdict or, in the alternative, for a new trial. This motion was denied.

When we come to a consideration of the case, we find there are three main questions involved. Was it negligence to leave the truck on the highway at the time and place and manner shown in the case? Was the plaintiff guilty of contributory negligence? Are the defendants Jake Bitterman and Philip Rivinius liable in any event?

[1][2] It may be well to state the pertinent facts as they are also in the companion case of Bernice Bagan against the same defendants. The defendants are copartners doing business as the Streeter Garage. The copartnership is the owner of the truck, which was purchased for use in the partnership business. The tacit agreement between the partners was that no partner could use it for his private business without the permission of the other partners. On October 26, 1933, the defendant Fritz Bitterman, without the knowledge or consent of his copartners, took this truck for the purpose of transporting some of his hogs to West Fargo. He made the trip, and on his return home about 11 p. m., at a point about two miles west of Cleveland and on a down grade, he had battery trouble. One Fred Schultz accompanied him. Their testimony is they spent some time trying to repair the truck. Finding this could not be done, they walked back to Cleveland to get some new batteries and repairs. It is their testimony that they parked the truck at a point about 300 feet down the hill, put on the brakes, switched on what was left of the lights both front and rear, and walked back to Cleveland to get a battery and some repairs. They described the trouble they had in getting the garage man at that hour, and the upshot was that shortly after 2 o'clock, when they returned to the place where they had left the truck, they found there had been a collision between the truck and the car driven by the plaintiff. They admit they did not set out a flare near the truck nor leave any one in attendance, but set the brakes before they left. There is dispute as to the place on the road where the truck was left-some testimony on the part of the plaintiff tending to show the truck was left in the middle of the road and at a point different from the one described by the defendants.

The plaintiff and his sister Bernice had been at Cleveland at a dance. They left for home about 2 a. m. driving west. Plaintiff says his speed was 25 miles per hour; that his lights shone ahead a distance of 200 feet; that he was keeping a good lookout; that the place of the collision was on a down grade about 75 to 100 feet from the top of the hill; that he did not see the truck until he was within 10 or 15 feet of it; that it was in the middle of the road; and that, in his attempt to pass on the left side, he struck the left rear side of the truck and the car was thrown into the ditch and damaged.

The record shows that the width of the graveled portion of the road at the place of collision was about 25 feet, and of the entire road was about 30 feet, that the truck was left standing at a place where the grade was 2 or 3 feet high, and there was a ridge of gravel on the north side.

There is conflicting testimony as to the place where the truck was left by defendant Fritz Bitterman. He had some person with him who could have remained to warn passersby. Whatever may have been the exact location of the truck, it is a fact that a large number of persons attending the dance passed this truck on their way home westward. All passed safely except the plaintiff, and some testified the truck was standing on the extreme north side of the road, that there was ample room for passing; some testified as to...