Bratvold v. LaLum

• Decision Date: 29 November 1938
• Docket Number: No. 6566.,6566.
• Citation: 68 N.D. 534,282 N.W. 514
• Parties: BRATVOLD v. LALUM.
• Court: North Dakota Supreme Court

68 N.D. 534

282 N.W. 514

BRATVOLD

v.LALUM.

No. 6566.

Supreme Court of North Dakota.

Nov. 29, 1938.

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.

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.

F. T. Cuthbert, of Devils Lake, for appellant.

Sinness & Duffy, of Devils Lake, for respondent.

MORRIS, Judge.

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 3 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 farm house, but seeing no light they turned around and started north on the highway toward Harlow. They walked past their own 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 6 or 8 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 5 1/2 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 40 to 45 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 65 feet into 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 100 feet before the impact.

[1][2] The motion for a directed verdict presented two questions. First, do the facts establish negligence on the part of the defendant, and, second, if the defendant was negligent, was the deceased also negligent in such a manner that his negligence proximately contributed to his death? Both of these questions are questions of fact which must be left to the jury unless the evidence is such that only one conclusion can reasonably be deduced therefrom. State v. Yellow Cab Company, 62 N.D. 733, 245 N.W. 382;Logan v. Schjeldahl, 66 N.D. 152, 262 N.W. 463. If, however, the facts and circumstances are such that only one inference can fairly and reasonably be drawn therefrom with respect to either the negligence of the defendant or the contributory negligence of the deceased, the matter then becomes a question of law to be decided by the court. Cameron v. Great Northern R. Co., 8 N.D. 124, 77 N.W. 1016;Pyke v. City of Jamestown, 15 N.D. 157, 107 N.W. 359;Krause v. Wilton, 40 N.D. 11, 168 N.W. 172;Dougherty v. Davis, 48 N.D. 883, 187 N.W. 616;Martin v. Parkins, 55 N.D. 339, 213 N.W. 574;Haugo v. Great Northern R. Co., 27 N.D. 268, 145 N.W. 1053.

[3] As a general proposition it may be said that where a person driving an automobile at night observes persons walking along the public highway, it is the duty of the operator to manage it so as to avoid injuring the pedestrians if it is reasonably possible to do so, and the failure to use reasonable care to avoid such injury constitutes negligence on the part of the driver. Gideon v. Jones, 180 Okl. 621, 70 P.2d 814.

[4] Whether either the defendant or the deceased was negligent must be determined with reference to standards of conduct prescribed by law. Clark v. Feldman, 57 N.D. 741, 224 N.W. 167. The plaintiff contends that the evidence is sufficient to warrant a jury in finding that the negligence of the defendant was the proximate cause of the accident. Among several reasons assigned the most potent is the fact that there is evidence from which a jury might determine that the defendant applied his brakes about 100 feet before striking the deceased, yet carried him 65 feet further before the...