Bratvold v. Lalum
| Decision Date | 29 November 1938 |
| Docket Number | 6566 |
| Citation | 282 N.W. 514,68 N.D. 534 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Benson County; C. W. Buttz, judge.
Action by Pearl Bratvold against Olaf P. Lalum for the death of plaintiff's husband who was struck by defendant's automobile. From an order denying defendant's motion for judgment notwithstanding the verdict, defendant appeals.
Reversed.
Syllabus by the Court.
1. Questions of negligence and contributory negligence are questions of fact for the jury unless the evidence is such that only one conclusion can be reasonably deduced therefrom.
2. If the facts and circumstances with reference to contributory negligence are such that only one inference can fairly and reasonably be drawn therefrom, the matter becomes a question of law to be decided by the court.
3. The evidence is examined and it is held, to disclose facts and circumstances which make the question of the defendant's negligence a matter for the jury.
4. Evidence examined and it is held to establish as a matter of law that the decedent's negligence contributed proximately to his death.
F T. Cuthbert, for appellant.
In a personal injury action, where it appears affirmatively from the uncontradicted testimony of the plaintiff that the proximate cause of the injury was the plaintiff's own negligence, a motion for a judgment notwithstanding the verdict should have been granted by the trial court. Dahl v. Minneapolis, St. P. & S. Ste. M.R. Co. 57 N.D. 538 225 N.W. 37.
If a pedestrian could, by exercise of reasonable care, have discovered danger from approaching automobile in time to avoid injury and failed to exercise such care, pedestrian was guilty of contributory negligence. Naylor v. McDonald, 241 N.W. 675; Culhane v. Waterhouse, 51 S.D. 584, 215 N.W. 885; Miller v. Kraft, 57 N.D. 565, 223 N.W. 190.
A pedestrian who, without looking for teams or vehicles, or taking any precautions for his own safety, is guilty of such negligence that, in case he is struck by a team driven on the street, he cannot hold its owner liable for his injuries. Dimuria v. Seattle Transfer Co. 50 Wash. 633, 97 P. 657, 22 L.R.A.(N.S.) 471.
A showing that a pedestrian failed to look for an approaching vehicle is the familiar ground upon which a recovery is denied. Cal. Jur. Supp. 1928, § 84.
The law requires that normal persons of mature years, possessed of their faculties, should exercise them for their own protection. Evans v. Orttenburger, 242 Mich. 57, 217 N.W. 753; 3 Berry, Auto. 7th ed. page 208.
Where a person has two or more places in which to walk, one of which is dangerous and where in the exercise of ordinary care it would be known to be unsafe, and where another road is safe, he is guilty of contributory negligence if he voluntarily chooses the unsafe course. Lindolff v. Duecker, 217 Iowa 326, 251 N.W. 698; Ford Ridge Bus Line v. Matthews, 248 Ky. 419, 58 S.W.2d 615; Descombaz v. Klock, 58 S.D. 173, 235 N.W. 502; Knight v. Seattle (Wash.) 222 P. 472; Maddux v. Gray, 128 Wash. 149, 222 P. 470.
But where a pedestrian deliberately attempts to cross in front of an approaching car, knowing that his chances of getting over to the other side in safety are about evenly balanced, he may be charged with having assumed the risk of injury and may be guilty of contributory negligence. 2 R.C.L. pp. 1196, 1197; Blackstead v. Kent, 63 N.D. 246, 247 N.W. 607; Chase v. Thomas, 7 Cal.App. (2d) 440, 46 P.2d 200; Autio v. Miller, 92 Mont. 150, 11 P.2d 1039; Frye v. Brinker, 272 Mich. 339, 262 N.W. 263.
Sinness & Duffy, for respondent.
The presumption of law is that the accused exercised ordinary care. Kunkel v. Minneapolis, etc. R. Co. 18 N.D. 367, 380, 121 N.W. 830; Hatzakorzian v. Rucker-Fuller Desk Co. 239 P. 709, 41 A.L.R. 1027.
Questions of negligence and contributory negligence are for the jury. Hauge v. Great Northern R. Co. 27 N.D. 268, 145 N.W. 1053; Axelson v. Jardine, 57 N.D. 524, 223 N.W. 32; Holmes v. Merson, 280 N.W. 139.
Incredible evidence may be disregarded. Rattie v. Minneapolis, etc. R. Co. 55 N.D. 686, 215 N.W. 158; Buboltz v. Chicago, M. & St. P.R. Co. 47 S.D. 512, 199 N.W. 782; note in L.R.A.1916D, 301; 64 C.J. 357.
On motion for judgment non obstante, the evidence must be considered in the light most favorable to the party in whose favor the verdict was rendered. Hager v. Minneapolis, etc. R. Co. 53 N.D. 452, 206 N.W. 702; Pederson v. O'Rourke, 54 N.D. 428, 209 N.W. 798.
The general rule is that where a verdict cannot stand, it is discretionary with the trial court whether a new trial should be given or a judgment notwithstanding entered. 33 C.J. 1180.
This suit results from an automobile accident which occurred at about 11 o'clock P.M., January 9, 1937 some two and one-half miles south of Harlow, North Dakota on State Highway No. 30. The accident resulted in the death of one Albert O. Bratvold, whose widow is the plaintiff in this action. The case was tried to a jury which was unable to agree upon a verdict. At the close of the testimony, the defendant moved for a directed verdict, and after the jury had failed to agree, the defendant, upon motion duly noticed, moved for judgment notwithstanding the verdict. This appeal is taken from the order of the trial court denying this motion.
The defendant contends that he was entitled to a directed verdict at the time his motion therefor was made, and that the jury having failed to agree, the trial court erred in refusing to enter judgment for the defendant upon his motion for judgment notwithstanding the verdict. The procedure is not questioned by the respondent. The question presented to us by this appeal is whether the defendant was entitled to a directed verdict at the time the motion therefor was made at the close of the testimony. If he was entitled to a directed verdict he was also entitled to have judgment entered notwithstanding the disagreement of the jury. The consideration of this question requires an examination of the evidence.
On the afternoon and evening preceding the accident, the deceased together with one John Ellingson, was in Devils Lake on business. They drank a quantity of alcoholic liquor before starting home. They lived at Harlow which is about twenty miles from Minnewaukan. On the way home they stopped at Minnewaukan where Ellingson transacted some business and Bratvold drank more liquor. From the evidence it is clear that Bratvold was intoxicated before they left Minnewaukan. As they approached Harlow the automobile failed to function properly and finally stopped as they were going up a hill about three miles south of the town. After trying unsuccessfully to start the car, Ellingson, who was driving, let it coast backward down the hill. After it had gone a short distance it ran off the road into the ditch. Ellingson and Bratvold abandoned the car and started to walk south to a farmhouse, but seeing no light they turned around and started north on the highway toward Harlow. They walked past their car and saw the reflection of the lights of a car coming from the north. Ellingson walked ahead and on the west shoulder of the highway. Bratvold walked six or eight feet back of him. As they walked along they talked about hailing the approaching car. It came down the west side of the highway and seemed to be slowing down as it neared the pedestrians. As it passed Ellingson the car appeared to be about in the center of the road. Then Ellingson heard a thump and turned around and saw the car in the ditch on the east side of the highway. Ellingson ran over to the car as some of the occupants got out. Bratvold had been hit and was underneath the front bumper. He was either dead or died a few minutes thereafter. The occupants of the car were the defendant, Olaf P. Lalum, the owner and driver, his brother, Albert Lalum, who lives on a farm with Olaf about five and one-half miles southeast of Harlow, and Andrew Olson, their hired man. They had left Harlow about 11 o'clock that night in a 1936 Pontiac sedan that had been driven five or six thousand miles. The brakes and lights were in good condition, although there is testimony to the effect that the left front brake did not work properly after the accident. Before reaching the point where the accident occurred, they drove up a hill. At the top of the hill they were travelling about forty to forty-five miles per hour. The south slope of the hill is not steep. It consists of several rises with short stretches between that are practically level. The accident occurred at the south end of one of these levels approximately 450 feet in length. The road at this point curves slightly to the east and back again to the section line. The road was somewhat icy. As they entered the curve the defendant saw Ellingson first and then Bratvold. They were walking along the west shoulder of the highway. Bratvold stepped out into the highway waving his hands. He then stepped back toward or near to the west shoulder and then walked east across the highway again still waving. The defendant was driving on the west side of the highway when he first saw Bratvold and Ellingson. The defendant turned to his left or to the east to get by Bratvold, who also kept on going east across the highway with the result that the car struck him on the east shoulder of the highway and continued on for sixty-five feet in to the east ditch. The defendant applied his brakes but did not set them hard fearing loss of control of the car because of the icy road. Measurements showed that the brakes had been applied one hundred feet before the impact.
The motion for a directed verdict...
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