Brower v. Stolz, 8043
| Decision Date | 25 April 1963 |
| Docket Number | No. 8043,8043 |
| Citation | 121 N.W.2d 624 |
| Parties | Richard J. BROWER, Plaintiff and Respondent, v. Gerald E. STOLZ, Defendant and Appellant, and Emma Brower, Additional Defendant on Counterclaim. |
| Court | North Dakota Supreme Court |
Syllabus by the Court
1. Within meaning of subsection 2 of Section 39-10-22, N.D.C.C., vehicles enter an intersection 'at approximately the same time' when there is imminent danger of collision at some point within the intersection, if each maintains its established course and speed.
2. On appeal from case tried to the district court without a jury, this court will given the trial court's findings appreciable weight.
3. The family purpose doctrine has no application to a case where the owner of a family automobile seeks to recover for damages to his automobile proximately caused by the negligence of the operator of another automobile, even though the family member driver of the owner's automobile was contributorily negligent.
Rittgers & Granner, Jamestown, for appellant.
Erickstad & Foughty, Devils Lake, for respondent.
The plaintiff in this action seeks to recover damages to his automobile as the result of an intersectional collision with a panel truck owned and operated by the defendant. It was alleged in the complaint that the collision was proximately caused by the negligence of the defendant. The plaintiff's automobile was operated by his wife and the plaintiff was not present. The defendant moved to have the plaintiff's wife brought in as a party defendant under Rule 13(h), N.D.R.Civ.P., and this was ordered by the court. The defendant answered the complaint and counterclaimed against the plaintiff's wife and the plaintiff for his damages. In defendant's answer he admits the accident occurred and denies the rest of the allegations of the plaintiff's complaint and asserts that the negligence of the plaintiff contributed proximately to the collision. In his counterclaim defendant affirmatively alleges that the negligence of the plaintiff's wife, in the operation of plaintiff's automobile, proximately caused the collision. He also affirmatively alleges that plaintiff kept and maintained the said automobile for family purposes and that the same was being operated by the plaintiff's wife under the family purpose doctrine at the time of the collision. Defendant prays that the plaintiff's complaint be dismissed and that he have judgment against the plaintiff and his wife for his damages. The plaintiff and his wife separately replied and answered to the defendant's counterclaim. The plaintiff's wife cross claimed against the defendant for personal injuries which she alleged she sustained as a result of the collision. The issues were joined, a jury was waived and the entire case was tried to the court. The trial court found for the plaintiff and against the defendant for the damages to the plaintiff's automobile. It dismissed the defendant's counterclaim and the plaintiff's wife's cross complaint against the defendant.
The defendant has appealed from the judgment in favor of the plaintiff and against the defendant for damages to the plaintiff's automobile. No appeal has been taken from the judgment dismissing the defendant's counterclaim or the plaintiff's wife's cross complaint.
The defendant's specifications of error and argument may be summed up as follows: (1) Insufficiency of the evidence to show actionable negligence on the part of the defendant, and (2) The evidence affirmatively shows that the plaintiff's wife, driver of plaintiff's automobile, was guilty of contributory negligence which was imputable to the plaintiff.
The collision occurred about 1:10 p. m., July 24, 1959, at the intersection of Fourth Street Northwest and Second Avenue Northwest in Jamestown, North Dakota. The plaintiff's wife, driving plaintiff's automobile and accompanied by their daughter and her friend who were student nurses at Jamestown College, was en route from the college campus to the Crippled Children's Home. The plaintiff's vehicle was proceeding in a westerly direction on Fourth Street Northwest and the defendant's truck was proceeding north on Second Avenue Northwest. These two streets intersected and the accident occurred near the center of said intersection. Contact was made with the right front of defendant's vehicle and the left front of plaintiff's vehicle. Both vehicles then veered northwesterly and stopped before coming to the northwest corner curb of the intersection. In this process the vehicles again made contact with each other at the rear, the right rear fender of defendant's vehicle and the left rear fender of plaintiff's vehicle making contact. Thus the damage to the two vehicles as a result of the two impacts was to the right front corner and right rear corner of the defendant's vehicle and the left front corner and the left rear corner of the plaintiff's vehicle. It was an open intersection without traffic signs controlling the movement or speed of vehicles. Both streets were paved and dry and no slippery conditions existed.
The plaintiff's wife did not apply the brakes and left no skid marks. The defendant applied his brakes and laid down skid marks for a continuous distance of 26 feet and 11 inches up to the point of impact. Both drivers testified they were traveling less than 20 miles per hour upon entering the intersection. The defendant admits he saw the plaintiff's automobile when he was approximately 50 feet south of the intersection. Plaintiff's wife testified she did not see the defendant's vehicle unit it was within a yard of the automobile she was driving. The intersection was located in a mixed residential and commercial area. A large brick building occupied as a truck and body shop was located on the corner common to both vehicles as they entered the intersection. On the west side of the building automobiles were parked on the avenue diagonally. The north side of the building was located 24 and one-half feet from the curb. The evidence does not disclose the distance of the building from the curb on the west but, according to pictures admitted in evidence, it appears to be located adjacent to the sidewalk.
According to an exhibit, the street upon which plaintiff's wife was driving was 32 feet in width. One-half thereof is 16 feet. The collision occurred at about the center of the intersection. Thus the defendant, who laid down skid marks of 26 feet and 11 inches, skidded 10 feet and 11 inches before he...
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