Briley v. Austad
| Citation | 108 N.W.2d 696 |
| Decision Date | 17 April 1961 |
| Docket Number | No. 7854,7854 |
| Parties | Marcella BRILEY, for the Use and Benefit of herself and Dolores Ann Briley, Jacqueline Briley, and Michael John Briley, Minors, and Vonne Jo Briley, for the Use and Benefit of Lonnie Dale Briley, a Minor, Plaintiffs and Respondents, v. Gary E. AUSTAD, Erwin Austad, Catherine M. Haugen, Weldon K. Haugen, Alvin William Frericks and Garritt Bakker, Defendant and Appellant, and Alvin William Frericks, Defendant and Respondent. |
| Court | United States State Supreme Court of North Dakota |
Syllabus by the Court.
1. Questions of negligence and contributory negligence ordinarily are questions of fact for the jury and become questions of law only when the evidence is such that reasonable men can arrive at but one conclusion.
2. In the instant case it is held for reasons stated in the opinion that the evidence presented issues of fact properly submissible to the jury on the question whether defendants were guilty of negligence.
3. In an action brought under the wrongful death statute a verdict of $25,000 is not excessive where the deceased was 23 years old at the time of his death, industrious and in good health, with a life expectancy of 44.88 years, and his widow and two minor children of the ages of one year and three years were dependent upon him for support and maintenance.
4. Where guest exercising ordinary care is killed in automobile collision because of joint operation of gross negligence of host and ordinary negligence by other driver, gross negligence of host, where not imputable to guest, would not bar recovery by guest's dependents against both drivers.
Mackenzie & Jungroth, Jamestown, for defendant and appellant.
Bosard, McCutcheon & Coyne, Minot, for plaintiffs and respondents.
Strutz, Jansonius & Fleck, Bismarck, for defendant and respondent, Alvin William Frericks.
This is an appeal from a judgment of the district court of McLean County in favor of the plaintiffs and against the defendants. The action was brought under the so called wrongful death statute. Sec. 32-2101 NDRC 1943. The facts are substantially as follows:
On the evening of November 9, 1957 at about 9:10 p. m. the defendant Gary E. Austad was driving a truck in a southerly direction on a section line road which intersects state highway No. 37 about two and one half miles east of the Village of Roseglen. On the same evening Mrs. Catherine Haugen was driving an automobile in an easterly direction on highway No. 37. She saw Gary E. Austad driving south on the section line road. She signalled him to stop as he approached the intersection. He turned right, facing west and stopped his truck approximately six feet to the north of her car. He stepped out of his truck and they had a brief conversation after which he went back to his truck and proceeded in a westerly direction on said highway No. 37. He stated that he was shifting from low gear into second and had attained a speed of about ten miles per hour when a station wagon driven by the defendant Alvin William Frericks, crashed into the rear of his truck. Jimmy Glen Briley was a passenger in the station wagon driven by Alvin William Frericks and as a result of the collision or crash he was fatally injured and died. The visibility was poor at the time of the collision because of a heavy fog in the area.
Jimmy Glen Briley was twenty three years old at the time of his death. He had been married twice. His first wife Vonne Jo Briley from whom he was divorced was the mother of his son Lonnie Dale Briley who at the time of the trial was of the age of three years. His second wife, Marcella Briley is the mother of his daughter Dolores Ann Briley who at the time of the trial was of the age of one year.
The action was brought by Marcella Briley, for the use and benefit of herself and Dolores Ann Briley, and by Vonne Jo Briley for the use and benefit of Lonnie Dale Briley as plaintiffs against the defendants Gary E. Austad and Alvin William Frericks.
The action was originally brought against six defendants, Erwin Austad, father of Gary E. Austad, Catherine M. Haugen and Weldon Haugen, her husband, Garritt Bakker owner of the station wagon driven by Alvin William Frericks, Gary E. Austad and Alvin William Frericks. By stipulation of the parties the action was dismissed as to all of the defendants, except Alvin William Frericks and Gary E. Austad.
The complaint alleges that the plaintiffs were dependent upon the deceased Jimmy Glen Briley for their support and maintenance; that he was killed as a result of the careless and negligent operation by the defendants, Alvin William Frericks and Gary E. Austad of their motor vehicles and that the action is brought in behalf of the plaintiffs and their children pursuant to the provisions of Chapter 32-21 NDRC 1943 as their respective interests may appear.
The complaint further alleges that the plaintiff Marcella Briley and her minor daughter Dolores Ann Briley were wholly dependent on the deceased Jimmy Glen Briley for subsistence and support at the time of his death; and that the plaintiff Vonne Jo Briley was having difficulty providing for the subsistence and support of her son Lonnie Dale Briley at the time of the death of Jimmy Glen Briley.
Judgment is then demanded for damages and that the same be in such shares as the court may determine to be equitable and just and for their costs and disbursements.
The defendants answered separately, generally denying liability and affirmatively alleging contributory negligence on the part of the deceased, Jimmy Glen Briley. The case was tried to the court and a jury. A verdict was returned for the plaintiffs in the sum of $25,000 and judgment was entered on the verdict.
At the close of plaintiffs' case the defendants moved for dismissal of the action which was denied. They then moved for a directed verdict in their favor which motion was denied. At the close of all the testimony both defendants made motions for directed verdicts which motions were also denied.
Thereafter the defendant Gary E. Austad made a motion for judgment notwithstanding the verdict or in the alternative for a new trial. The motion was denied and the defendant Gary E. Austad appealed from the order denying his motion for judgment notwithstanding the verdict and from the judgment. The defendant Alvin William Frericks did not appeal. He obtained an order from the trial court permitting him to deposit in court for the benefit of the plaintiffs $12,500 upon the condition that the acceptance thereof by plaintiffs should in no way affect the rights of the parties for contribution, or the right of the defendant Gary E. Austad to appeal, nor should acceptance by the plaintiffs of said sum of $12,500 release either Austad or Frericks from liability on the judgment.
Appellant Austad assigns five specifications of error as follows:
Since Frericks did not appeal the question before us is whether negligence on the part of Austad was a proximate cause of the death of Jimmy Briley.
It is contended by pl...
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Curry v. Case
...253 So.2d 140; Anderson v. Glass, 19 Ill.App.2d 414, 153 N.E.2d 863; White v. Rucker, 260 N.C. 226, 132 S.E.2d 327; Briley v. Austad, S.Ct.N.D.1961, 108 N.W.2d 696; Agren v. Keller, 9 A.D.2d 1000, 194 N.Y.S.2d ...