Bagg v. Otter Tail Power Co.

• Decision Date: 28 April 1941
• Docket Number: No. 6688.,6688.
• Parties: BAGG v. OTTER TAIL POWER CO.
• Court: North Dakota Supreme Court

70 N.D. 704

297 N.W. 774

BAGG

v.OTTER TAIL POWER CO.

No. 6688.

Supreme Court of North Dakota.

April 28, 1941.

Syllabus by the Court.

1. Under the law of this state, a party to an action has the right to request the court, in writing, to give such instructions to the jury as the party may deem proper and necessary, and these requested instructions should be given without modification or change when they contain proper statements of the law and deal with the issues before the jury, unless the equivalent to these instructions is fairly and properly stated and given to the jury by the court in its charge.

2. It was not error for the trial court to refuse to give the instructions requested by appellant, as the written charge given to the jury covered all of the issues in the case, all proper matter embraced in the requests, and fully and fairly stated the law governing the questions to be determined.

3. The defense of contributory negligence is an affirmative defense and presupposes negligence on the part of the defendant.

4. Even though the defendant is shown to have been guilty of negligence, no recovery can be had by plaintiff when the injury is due to the negligence of both parties.

5. Negligence, whether contributory or primary, is a question of fact, never of law, unless the established or conceded facts from which the inference must be drawn admit of but one conclusion by reasonable men.

6. The standard to be used in determining whether or not plaintiff has been guilty of such contributory negligence as will defeat recovery is whether the actions of the plaintiff were those of an ordinary, prudent person under the same circumstances and in the same position.

7. Record examined, and it is held: it was the duty of the court to submit to the jury the question of whether the plaintiff was guilty of contributory negligence, and that there was sufficient evidence from which the jury could find plaintiff was not guilty of such contributory negligence as precluded recovery.

Appeal from District Court, Richland County; Wm. H. Hutchinson, Judge.

Action by Florence Bagg against the Otter Tail Power Company to recover for damages sustained in a collision between plaintiff's automobile and defendant's truck at intersection, wherein the defendant filed a counterclaim. From a judgment entered on a verdict for the plaintiff, and from an order denying the defendant's motion for judgment notwithstanding the verdict or for a new trial, the defendant appeals.

Judgment and order affirmed.

Forbes & Forbes, of Wahpeton, and Field & Field, of Fergus Falls, Minn., for appellant.

Clifford Schneller, of Wahpeton, for respondent.

BURR, Chief Justice.

This is an appeal from the judgment and from the order of the trial court denying appellant's motion for judgment notwithstanding the verdict or for a new trial.

Plaintiff alleges: that while driving eastward on Seventh Avenue North in the city of Wahpeton, and while in the intersection of that avenue with Fourth Street, there was a collision between the car she was driving and a truck owned and operated by the defendant; that the driver of the truck, approaching this intersection from the north and to plaintiff's left, operated the truck in a careless and negligent manner, without due regard to the rights of others; and exceeding the speed limit, drove into the intersection from the left of the plaintiff, colliding with her car; and that she suffered damage in the sum of $165.

The defendant admits there was this collision, but denies any negligence on the part of the driver of the truck, claiming the collision was caused by the negligence and carelessness of the plaintiff, which so contributed to the collision as to prevent her recovering. As a counterclaim, defendant asked judgment against the plaintiff for damages in the sum of $70. The reply denies the allegations in the answer.

At the close of plaintiff's case, and at the close of the entire case, the defendant moved the court to direct a verdict in its favor on the ground that plaintiff wholly failed to prove her cause of action, “and upon the further ground that the evidence shows that the plaintiff was guilty of contributory negligence as a matter of law.” These motions were denied, the case was submitted to the jury, and a verdict was returned in favor of the plaintiff for $100. Judgment was entered thereon, and defendant moved for judgment notwithstanding the verdict or for a new trial. This motion being denied, the appeal was taken.

The basic contention of the appellant is founded on the assertion that the plaintiff was guilty of such contributory negligence as precludes recovery on her part. Two of the specifications of error are based on this contention, and, in addition, it is alleged the court erred in failing to give to the jury the following instructions requested by the defendant:

No. 1. “If you find that the plaintiff was careless or negligent and that such carelessness or negligence proximately contributed to the accident, that is what is known in law as contributory negligence on the part of the plaintiff and, in that event, the plaintiff cannot recover and your verdict must be for the defendant.”

No. 2. “If you find that both the plaintiff and the defendant were careless or negligent and that the carelessness or negligence of both the plaintiff and the defendant proximately contributed to the accident, neither party can recover from the other, and your verdict must be for the defendant.”

No. 3. “The law requires the operators of motor vehicles upon the public highways to use due care under the circumstances and to see and observe other vehicles using the highways, and failure to do so constitutes negligence under the law.”

[1] These requested instructions deal with an issue in the case, and, if proper statements of the law, should have been given without modification or change, unlessthe equivalent was fairly and properly stated and given. See Landis v. Fyles, 18 N.D. 587, 590, 120 N.W. 566, 567.

It is the duty of the trial court to fully and fairly instruct the jury on the law governing the issues involved, and each party has a right to request the court to charge on certain matters believed to be involved. The court will not instruct on matters not in issue, even though requested to do so, nor give requested instructions that are erroneous or insufficient; nor is the court required to charge in the precise language requested by the party.

While our statute, section 7620 of the Compiled Laws, N.D.1913, gives to either party the right to request instructions, and provides that such instructions “must be written on a separate sheet and may be given or refused by the court, and the court shall write on the margin of such requested instruction given by him the word, ‘given,’ and on the margin of those which he does not give he shall write the word, ‘refused,’ and all instructions asked for by the counsel shall be given or refused by the court without modification or change, unless modified or changed by consent of counsel asking the same”; nevertheless, the court is not required to give “requested instructions in the order as requested; nor does the statute prevent the court from instructing upon the theory of the opponent's case in connection with each separate requested instruction, as to the subject-matter of each request, that both sides of the case may be covered without repetition, when all matter embraced in requests is covered by instructions formulated by the court, or when the requested instructions are given in terms as requested.” Fawcett v. Ryder, 23 N.D. 20, 21, 135 N.W. 800, 801.

In the charge to the jury, the court carefully defined the duties, responsibilities, rights and privileges of the drivers of cars while on the public highways. The court charged that a “person driving a vehicle upon the highway shall drive the same at a careful and prudent speed, not greater than is reasonable and proper, having due regard to the traffic, surface and width of the highway, and of any other conditions then existing; and no person shall drive any vehicle upon a highway at such a speed as to endanger the life, limb or property of any person.”

The court then defined the rate of speed permitted by law, but showed that the driver was not entitled necessarily to proceed at that speed, but must reduce speed when the rate of speed permitted would be unsafe. The court charged:

“Our law also provides that when two vehicles approach or enter an intersection at approximately the same time the driver of the vehicle on the left shall yield the right of way to the vehicle on the right.

Our law further provides that the driver of a vehicle approaching but not having entered an intersection shall yield the right of way to a vehicle within such intersection.”

The court went further into the doctrine of the right of way, and showed that a driver approaching an intersection was not required to wait for a car coming from the right, except that when the two cars would meet at the intersection approximately at the same time, the car at the right had the right of way. The court further charged that all drivers approaching an intersection “should approach such intersection with caution and with due regard to the circumstances and conditions, and that the party approaching has a right to presume that the other automobile approaching at the same time will also have due regard and caution in entering such intersection and will have his automobile under proper control.

I also instruct you that although one car had the right of way its driver may not in the exercise of that privilege wholly disregard other wayfarers but must exercise reasonable care with respect to all, and that although a driver may have the right of way it is still his duty to take every reasonable precaution to avoid a collision with another automobile which may not have the right of way.”

The court...