Belt v. City of Grand Forks

• Citation: 68 N.W.2d 114
• Decision Date: 13 January 1955
• Docket Number: No. 7477,7477
• Parties: Betty Lou BELT, Plaintiff and Appellant, v. CITY OF GRAND FORKS, Defendant and Respondent.
• Court: United States State Supreme Court of North Dakota

Page 114

68 N.W.2d 114

Betty Lou BELT, Plaintiff and Appellant, v. CITY OF GRAND FORKS, Defendant and Respondent.

No. 7477.

Supreme Court of North Dakota.

Jan. 13, 1955.

Syllabus by the Court.

1. A municipal corporation is under no obligation to improve a street to its full width and the extent to which a street is improved rests in the sound discretion of the municipal authorities.

2. A municipal corporation is not required to guard against such dangers in a street as can or ought to be anticipated or foreseen in the exercise of reasonable prudence and care. No actionable negligence on the part of a municipality, or want of care, is involved by its failure to erect or maintain barriers, lights, or warning signs at point of offset or jog in a street where such offset or jog is not in itself dangerous to an observant driver.

3. Where no actionable negligence is shown, the granting of a defendant's motion to dismiss and the entry of judgment on the merits thereon, if error, was error without prejudice and will not be disturbed on appeal.

Duffy & Haugland, Devils Lake, and Lyche & Lyche, Grand Forks, for plaintiff and appellant.

Harold D. Shaft, Grand Forks, for defendant and respondent.

JOHNSON, Judge.

This is an action against the City of Grand Forks, a municipal corporation, for damages resulting from an automobile accident that occurred at about 11:30 p. m. on May 9, 1952. The plaintiff was a passenger in a 1947 Ford sedan operated by her husband, Freeman Belt. He, together with the plaintiff, Fred and Ruth Holweger, the father and mother of the plaintiff, and Franklin Holweger, a brother of the plaintiff, were occupants of the automobile at the time of the accident. Freeman Belt was driving west along Ninth Avenue South in the city of Grand Forks, towards South Washington Street. The accident happened across South Washington Street as it intersects Ninth Avenue South.

South Washington Street runs north and south. It is the dividing line between two subdivisions of the city of Grand Forks, Villard's and McKelvey's Additions. Both additions were established and approved by the city council in June of 1882. The platting of these additions so far as street intersections are concerned, has remained unchanged to this day. South Washington Street is platted to the width of eighty feet. So is Ninth Avenue South on the east side of South Washington Street. On the west side of South Washington Street, Ninth Avenue South is seventy-eight feet wide. South Washington Street is not improved to its full width of eighty feet. At the time of the accident it was graveled in the middle with a shallow ditch along the west side. The streets on the east of South Washington Street do not match up with the streets on the west side. Those on the west side are about ninety-seven feet north of those on the east side, so that the south line of Ninth Avenue South, west of South Washington Street, lies about seventeen feet north of the north line of Ninth Avenue South to the east of South Washington Street. In other words, when traveling west at the intersection of Ninth Avenue South with South Washington Street, there is a jog to the right. A vehicle driving west on Ninth Avenue South as it approaches and gets into the intersection with South Washington Street, must make a right turn on South Washington Street and go north some sixty or seventy feet, and then turn left to proceed west on Ninth Avenue South. The accident involved in this action occurred when the plaintiff's husband failed to make the turn and drove his car straight across South Washington Street into a shallow ditch. After crossing the ditch the car hit an embankment on the west edge of South Washington Street. The embankment was from one and one-half to two feet high. The car came to a sudden stop and the plaintiff received the injuries of which she complains and which are the basis of this action.

The car was being driven thirty miles per hour at the time of the accident, with head lights on dim. The testimony shows that they would give clear vision for only about forty feet. The members of plaintiff's family were talking and visiting as they approached South Washington Street. No one noticed that Ninth Avenue South does not continue straight west after crossing South Washington Street. Some residences are located straight west across South Washington Street. The plaintiff's husband drove across South Washington Street, directly west, towards these residences. They are located to the south of the jog in Ninth Avenue South.

The evidence further shows that the plaintiff had lived in Grand Forks since 1935 and her husband since 1936, except for five years in the army. It appears that neither the plaintiff nor the other occupants of the car were acquainted with the intersection at which the accident occurred. The plaintiff's husband says that he 'thought' South Washington Street was marked with stop signs, although he did not remember that he had ever been on this street before. He did not see the road continue beyond South Washington Street, nor did he notice the embankment on the west side until he was upon it.

There is no evidence in the record to show that there were any defects or obstructions in either Ninth Avenue South or South Washington Street. There is no evidence of lack of maintenance in the record.

The plaintiff contends there was no street light burning at the intersection of South Washington Street and Ninth Avenue South at the time of the accident. This is denied by witnesses for the defendant. There was no stop sign or highway sign indicating a turn at the intersection of South Washington Street and Ninth Avenue South at the point of the accident, nor was there any dead end warning on the west side of South Washington Street, to warn people that traveled Ninth Avenue South going west that they could not proceed due west across South Washington Street.

It is not necessary for a proper understanding of this case to set forth the entire contents of the complaint. It is alleged that the defendant is a municipal corporation; that it is the owner of the streets and avenues of the city, and that at the time of the accident involved in the action it had supervision and control thereof, and that it was the duty of the municipality or its agents to keep said streets and avenues safe and free from danger, properly lighted with appropriate signs to warn of danger ahead so that the public might travel thereon by motor vehicle or other means of conveyance. Then the complaint alleges that the plaintiff was a passenger in the car mentioned, operated by her husband, traveling on Ninth Avenue South in the city of Grand Forks, going west at a low and reasonable rate of speed in a careful, prudent manner; that the automobile in which the plaintiff was a passenger was in good shape and under proper control; that it was after dark and that the plaintiff's husband came to the west end of Ninth Avenue South, or the so-called 'dead end' touching South Washington Street, which had a ditch on the west side; there was no indication of a stop sign or a sign to turn right or left, nor any sign or light to indicate there was any danger ahead upon reaching South Washington Street; that it was the duty of this city to guard and protect travelers and the public and to have suitable warnings or barriers to prevent travelers on said street from running into the ditch (on the west side of South Washington Street); that said ditch was so deep as to be dangerous; that the city failed and neglected to do so, and had permitted the ditch to remain open, uncovered, and unprotected, without barrier or warning, and that Freeman Belt, the husband of the plaintiff, while driving with care and caution, traveled on Ninth Avenue South; that the ditch was hidden and unnoticeable.

The defendant admits that the city of Grand Forks is a municipal corporation, but otherwise denies the allegations and asserts that if the plaintiff suffered any injuries as a result of the accident, they were caused solely and only by the negligence of Freeman Belt in that he drove his motor vehicle without care and caution at a high and dangerous rate of speed in excess of the speed limits of the city of Grand Forks, which it is asserted is twenty miles per hour at the place of the accident; that because of the excessive speed at which Freeman Belt was driving, he was unable to bring his vehicle to a stop within the assured clear distance ahead of his lights at the time and place of the accident, and that he was not in full control of his automobile, and further that he was under the influence of intoxicating liquor, and that the plaintiff had knowledge of the condition of the said Freeman Belt, the driver of the car. The answer further sets up that the plaintiff was guilty of negligence that contributed to her injury, and that the plaintiff was well acquainted with the nature of the road upon which the motor vehicle was being driven and knew, or should have known that her husband was driving his car at a dangerous and unlawful rate of speed in light of the condition of the road and the location, and that she knew that her husband, Freeman Belt, was under the influence of intoxicating liquor; that she chose to ride with him at said time and place, but failed to protest against his careless, reckless, and negligent operation of the automobile; that the defendant has no knowledge of the nature and extent of the injuries suffered by the plaintiff, and asks for a dismissal of the action.

The case was tried to a jury. At the completion of the presentation of the plaintiff's evidence, the defendant moved for a dismissal of the action: first, on the ground that the plaintiff failed to state a cause of action against the defendant; second, that the evidence wholly failed to establish a cause of action against the defendant; and third, that the plaintiff, as a matter of law, was guilty of contributory...