Bertsch v. Zahn, 8300

Citation141 N.W.2d 792
Decision Date20 April 1966
Docket NumberNo. 8300,8300
PartiesSophia BERTSCH, Plaintiff and Appellant, v. Douglas ZAHN, Defendant and Respondent.
CourtUnited States State Supreme Court of North Dakota

Syllabus by the Court

1. On a trial de novo on appeal pursuant to Section 28--27--32, N.D.C.C., the

appellate court will consider and give appreciable weight to the findings of fact of the trial court.

2. The record in the instant case is examined, and it is held that the evidence does not establish that defendant was negligent.

Rausch & Chapman, Bismarck, for plaintiff and appellant.

Vogel, Ulmer & Bair, Mandan, for defendant and respondent.

TEIGEN, Chief Justice.

The plaintiff has appealed from a judgment dismissing her complaint. The case was tried to the court, without a jury, and a trial de novo is demanded, pursuant to Section 28--27--32, N.D.C.C.

This action arose out of a two-car collision on U.S. Highway No. 10 approximately eleven miles east of Bismarck in which the plaintiff was injured. The plaintiff, Mrs. Bertsch, was a passenger in the automobile driven by her husband, Jacob Bertsch, and she seeks to recover for her personal injuries from Douglas Zahn, the driver of the other automobile. Plaintiff and her husband were traveling east, and the defendant was traveling west. The accident occurred when the plaintiff's husband made a left turn onto an intersecting road, crossing the defendant's lane of travel as the defendant was approaching the intersection. Although the defendant attempted to stop his vehicle, he was unable to do so. A collision resulted on the north approach of the intersecting road.

The plaintiff's husband estimated his speed before the turn was 55 miles per hour. However, he testified that before commencing the turn he had slowed his speed to about 20 miles per hour. Neither the plaintiff nor her husband recall any of the events that occurred after slowing the vehicle for the purpose of making the turn, and Mr. Bertsch could not recall whether he signalled before making the turn. Neither of them recall seeing the defendant's vehicle approaching from the east. The accident occurred about 1:00 P.M., July 3, 1964. The weather was clear, and the roads were dry. Highway No. 10 at the accident scene consists of a 24 foot mat of hardtop with eight-foot gravel and oil shoulders.

The defendant testified he was traveling between 50 and 60 miles per hour when he first observed the Bertsch vehicle about a quarter of a mile east of the intersection. There was no traffic between them, although he noted two or three vehicles following the Bertsch automobile. The defendant estimated he was a block, or approximately 300 feet, east of the intersection when he first noticed that the Bertsch vehicle was turning across his traffic lane. He saw no signal indicating a left turn and testified that the first knowledge he had that the vehicle was going to turn was when it was turning. The defendant applied his brakes and attempted to stop his vehicle. It laid down skid marks for a distance of 180 feet to the point of impact. These skid marks, as testified to by a highway patrolman, reveal that the first 64 feet consisted of a single skid mark laid down by the right wheels on the hardtop surface of the highway. They veered to the right, and the last 116 feet were double skid marks made by the wheels on both sides of the defendant's vehicle. The latter were visible on the north shoulder of the highway. These skid marks indicate that as the defendant braked his automobile it moved to the right. It is not clear from the testimony whether the application of the brakes caused it to pull toward the right. The front end of the defendant's vehicle struck the Bertsch vehicle on the right side. It dented the right side of the Bertsch vehicle from the back part of the front door panel, across the rear door panel, and ending on the body panel immediately to the back of the rear door. The defendant's vehicle stopped on the approach of the intersecting road. The Bertsch vehicle turned to the left, proceeded northwesterly into the ditch and stopped about 32 feet from the point of impact. It stopped almost parallel with the hardtop mat of Highway No. 10 about 28 feet from the shoulder thereof. The left rear of the defendant's vehicle was 11 feet north of the mat and the front left of his vehicle 10 feet distant therefrom. Neither vehicle overturned.

The trial court found the plaintiff's husband had failed to give an appropriate signal in making the left turn, that he made the turn at a time when such movement could not be made with reasonable safety, that he failed to yield the right of way to the defendant's approaching vehicle, that the defendant had a right to presume that the other driver would obey the rules of the road and that no left turn would be made, that the defendant was operating his vehicle at a lawful speed and kept a proper lookout and control, and that the defendant's brakes were in proper working condition. He concluded that the defendant was not negligent; therefore, the plaintiff had no right to recover damages from the defendant for her personal injuries sustained as a result of the accident.

The only issues before us on this appeal are: Was the defendant negligent; and, if so, was his negligence the proximate cause of the plaintiff's injuries?

On trial de novo on appeal, the Supreme Court must review and weigh the evidence and find facts independently of trial court's findings, but in so doing, findings of trial court will be considered and given appreciable weight, especially when based upon testimony of witnesses who appeared in person before trial court. Umland v. Frendberg, N.D., 63 N.W.2d 295.

The plaintiff in her argument to this Court contends that the physical facts in evidence conclusively establish that the defendant was negligent. In support of this contention it is urged the skid marks prove the defendant's vehicle was not equipped with proper brakes. The defendant was examined relative to his brakes and testified that they were of the...

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5 cases
  • Knauss v. Miles Homes, Inc.
    • United States
    • North Dakota Supreme Court
    • 31 Diciembre 1969
    ...and this court must try the case anew and determine the facts for itself. Johnson v. Davis, 140 N.W.2d 703 (N.D.1966); Bertsch v. Zahn, 141 N.W.2d 792 (N.D.1966); Verry v. Murphy, 163 N.W.2d 721 Therefore, we have very carefully studied the record on the issue of whether the plaintiff had a......
  • Miller v. Trinity Medical Center, 9352
    • United States
    • North Dakota Supreme Court
    • 10 Noviembre 1977
    ...the word "responsible" in the sense of causation in fact, as distinguished from proximate cause in law. As we said in Bertsch v. Zahn, 141 N.W.2d 792, 795 (N.D.1966): "Furthermore, we know from experience that what an individual concludes is his fault may not in the eyes of the law be his S......
  • Dvorak v. Kuhn
    • United States
    • North Dakota Supreme Court
    • 18 Febrero 1970
    ...the case anew, giving appreciable weight to the findings of the trial court. Johnson v. Davis, 140 N.W.2d 703 (N.D.1966); Bertsch v. Zahn, 141 N.W.2d 792 (N.D.1966); Frederickson v. Hjelle, 149 N.W.2d 733 (N.D.1967); Verry v. Murphy, 163 N.W.2d 721 Here, the allegedly libelous matter consis......
  • Lee v. Johnson
    • United States
    • North Dakota Supreme Court
    • 24 Noviembre 1967
    ...findings of the trial court are, on trial de novo, entitled to appreciable weight. Pauly v. Haas, 84 N.W.2d 302 (N.D.1957); Bertsch v. Zahn, 141 N.W.2d 792 (N.D.1960). Such findings are not, however, to be used in replacement of the performance of this court's statutory duty to try anew que......
  • Request a trial to view additional results

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