Clark v. Feldman

• Decision Date: 15 February 1929
• Citation: Clark v. Feldman, 57 N.D. 741, 224 N.W. 167 (N.D. 1929)
• Court: North Dakota Supreme Court

224 N.W. 167

57 N.D. 741

CHARLES H. CLARK, Appellant, v. M. FELDMAN, Respondent

Supreme Court of North Dakota

February 15, 1929

Rehearing Denied March 23, 1929.

Appeal from the District Court of Ramsey County, Buttz, J.

Reversed and a new trial granted.

J C. Adamson and Francis Murphy, for appellant.

"The requirements imposed by law upon pedestrians, in the exercise of reasonable care, are not the same as those imposed upon the automobile driver." O'Dowd v. Newnham, 13 Ga.App. 220.

"One driving in the streets is bound too look out for pedestrians not only at the crosswalks but in all parts of the street." Stringer v. Frost, 116 Ind. 477.

"It is negligence for the driver of an automobile having ample space to pass a pedestrian on a highway to so guide his vehicle as to strike the latter in passing." Schock v. Cooling, 175 Mich. 313.

"Where a person is not careless, but who is properly walking along or across a street, and is injured by an automobile rapidly and negligently driven upon him before he has reasonable opportunity to escape, the party so driving the automobile is liable in damages for injuries proximately caused by the negligence." Goldring v. White, 63 Fla. 162.

"Where the acts complained of as contributory negligence are done in the excitement of the moment, and in extremis, for the purpose of extricating the person charged from the dangerous position in which he has been placed by defendant's fault, contributory negligence cannot be based thereon. If the acts were unwise, they were error, and the law in its wisdom will grant absolution." The City of Paris, 9 Wall. 634.

"A mere error of judgment is not of itself contributory negligence; and where an automobile came upon the deceased under circumstances calculated to produce fright or terror and such fright or terror was produced thereby, and this caused an error of judgment, by which the boy ran in front of the automobile, it was not contributory negligence." Thies v. Thomas, 77 N.Y.S. 276.

"By newly discovered evidence is meant proof of some new material fact in the case, which has come to light since the verdict." 3 Graham & Waterman, New Trials, Re McManus, 72 N.Y.S. 409.

An automobile may become inherently a dangerous agency. Berry, Auto. 2d ed. 681; Texas Co. v. Veloz (Tex. Civ. App.) 162 S.W. 377.

F. T. Cuthbert, for respondent.

"Generally, the question of negligence is for the jury, unless on the whole record reasonable men in the experience of reason and judgment can draw but one inference therefrom." Miller v. Minneapolis, St. P. & S. Ste. M.R. Co. 50 N.D. 206, 195 N.W. 33; Pederson v. O'Rourke, 54 N.D. 430, 209 N.W. 798.

"Ordinarily, the questions of negligence and proximate cause are questions of fact for the jury. 29 Cyc. 627, 639. They become questions of law only when the evidence is such that different minds cannot reasonably draw different conclusions, either as to facts or the deductions to be drawn from the facts." McGregor v. Great Northern R. Co. 31 N.D. 471, 154 N.W. 261, Ann. Cas. 1917E, 141." Daugherty v. Davis, 48 N.D. 883, 187 N.W. 616.

"A person crossing a public street of a city is required to make a reasonable use of all his senses in order to observe an impending danger, and if he fails to do so, and is injured by reason of such failure, he is guilty of such negligence as will prevent any recovery for the injury sustained." Hannigan v. Wright, 5 Penn. (Del.) 537; Simeone v. Lindsay, 6 Penn. (Del.) 224, 1 N.C.C.A. 127; 2 N.C.C.A. 294.

The pedestrian is bound to use his eyes and other senses to avoid being hurt, and if he does not he is guilty of contributory negligence. McCormick v. Hesser, 77 N.J.L. 173, 71 A. 55; Tolmie v. Woodward Taxicab Co. 178 Mich. 426, 144 N.W. 85.

"The rule requiring the plaintiff to act at once when in the presence of great danger, and holding that he is not guilty of contributory negligence, as a matter of law, merely because he did not choose the best means of escape, only applies where the plaintiff is brought in the presence of immediate danger by and through the negligence and want of care of the defendant or others, and not where he is brought into such position by his own contributory negligence." 2 Bailey, 1462; Wilkins v. New York Transp. Co. 52 Misc. 167, 101 N.Y.S. 650; Seaman v. Mott, 127 A.D. 18, 110 N.Y.S. 1040; 1 Sherm. & Redf. Neg. 113, 116.

Birdzell, J. Burke, Ch. J., and Christianson, Nuessle, and Burr, JJ., concur.

OPINION

BIRDZELL

This is action to recover damages alleged to have been sustained by the plaintiff through the negligence of a servant of the defendant in driving the defendant's delivery truck upon and over the plaintiff as he was crossing the street in the city of Devils Lake. From a judgment in favor of the defendant entered on the verdict of a jury and from an order denying the plaintiff's motion for a new trial, the plaintiff appeals to this court.

The salient facts are: That on the morning of July 30, 1927, between 8:00 and 9:00 A.M., the plaintiff Clark, a man nearly eighty years of age, walked down the east side of Fourth avenue, in Devils Lake. At the intersection of Fourth avenue and Fourth street, he turned to the right to cross the avenue. As he was crossing toward the west, the defendant's delivery truck, being operated at the time by one Melhouse, came upon him, struck and seriously injured him. The plaintiff's eyesight was good and he testified that he looked but saw no car coming. There was no obstruction in the street or nothing, so far as the record shows, to interfere with the vision of the driver of the truck. He testified that he was driving not over twelve miles an hour; that as he approached the intersection of Fourth street and Fourth avenue he saw the plaintiff standing by the lamp post at the curb and a little north of the intersection; that as he was driving up the avenue the left wheel of the car was about the center of the street; that he next saw the plaintiff right beside the car and a little bit north of the pedestrian's lane marked upon the pavement at the intersection. Clark was about three feet from the car when the witness observed him and had he stopped he would not have been struck. The witness applied the foot brakes as quickly as he could, stopping the car within about twenty feet, or, as he explained later, within twenty feet of the north line of the pedestrian's lane. From these facts alone there can be no question in our judgment but that the questions of negligence and contributory negligence were for the jury. It is needless to recite the testimony as to the circumstances of the collision.

It appeared that Melhouse had been employed by the defendant for several weeks before this time to operate the truck in question for the purpose of delivering groceries; that he was in the employ of the defendant at the time; that the defendant was not in town on the morning of the accident; that Melhouse had gone to the store that morning, which was located about a block north and half a block west of the place where the collision occurred and, after having done some work about the store, took the truck, drove to the depot in the south part of the city, for the purpose, according to his testimony, of mailing some letters of his own on the morning train and that the collision occurred as he was on his way back to the store.

There are a number of errors assigned and argued in the brief which, in the view we take of the case, it will be unnecessary for us to consider. We shall consider only the exceptions to the charge. In charging the jury on the question of contributory negligence, the court, after defining negligence, said:

"So, in this case, to make the defendant liable it must appear that the plaintiff was using ordinary care and diligence, but it must also appear from a fair preponderance of the evidence that Melhouse was negligent in the operating of that automobile on the street at that time; that is, that he didn't use ordinary care in running that automobile. In order that Mr. Clark recover in this lawsuit, it must appear not only that Melhouse was acting in the course of his employment, and that he was negligent and careless, but that Mr. Clark was himself free from negligence and carelessness. If you find that Melhouse was acting in the course of his employment, if you find that he was negligent in operating that automobile, and that that negligence brought about or helped to bring about that accident and the injury to Mr. Clark, then you should pass to the question of whether or not Mr. Clark himself, under all of the circumstances, was negligent or careless; and in passing upon that question, have reference to all of the evidence that may apply to that matter or may throw light into your minds as reasonable men. If you find, Gentlemen of the Jury, that Melhouse was negligent, but, on the other hand, you find that Clark was also negligent, and that his negligence or carelessness brought about or helped to bring about his injury, then he cannot recover in this lawsuit. If he was negligent or careless and that negligence or carelessness had anything to do with bringing about his injuries, then Mr. Clark cannot recover. That would be true no difference how negligent or how careless Mr. Melhouse was in the operation of that automobile."

After the jury had been considering the case for some time they returned to the court room, whereupon the foreman announced that there was a difference of understanding concerning the charge, that they could not agree as to the part wherein the court had said that if there was negligence on the part of both parties the verdict should be for the defendant. Thereupon the court said:

"Well, I say to you, Gentlemen of the Jury, in that respect that I first said to...