Clark v. Feldman

• Decision Date: 23 March 1929
• Docket Number: No. 5616.,5616.
• Citation: 57 N.D. 741,224 N.W. 167
• Parties: CLARK v. FELDMAN.
• Court: North Dakota Supreme Court

57 N.D. 741

224 N.W. 167

CLARK

v.FELDMAN.

No. 5616.

Supreme Court of North Dakota.

Feb. 15, 1929.

As Modified March 23, 1929.

Rehearing Denied March 23, 1929.

Syllabus by the Court.

In an action for damages arising out of a collision between a delivery truck and a pedestrian at a street crossing, it is held that an instruction to the jury on negligence and contributory negligence which omits to define the rights and duties of the parties, as prescribed by paragraph (c) of section 18 of chapter 162 of the Laws of 1927, regulating highway traffic, was prejudicial to the plaintiff, in that it did not give to the jury an adequate basis upon which to determine the reasonableness of the conduct of the parties affected.

A motorist in approaching a crossing used by pedestrians at an intersection is required to be vigilant and to have his car under control so as not to endanger the lives and limbs of pedestrians.

Under paragraph (c) of section 18 of chapter 162 of the Laws of 1927, a driver is required to yield the right of way to a pedestrian crossing the highway on a regular pedestrian crossing, as therein defined, but the statute does not absolve pedestrians from exercising due care to avoid collisions with vehicles.

The statute referred to in paragraph 3 above puts the necessity of continuous observation on the driver when approaching an intersection and the like necessity upon a pedestrian in crossing the street elsewhere than at a crossing.

Questions of negligence and contributory negligence must be determined with reference to standards of conduct prescribed by law.

Where the contributory negligence of the plaintiff is relied upon to defeat the right of a pedestrian to recover on account of the negligence of the driver of a truck, such contributory negligence must be found to have been a proximate cause of his injury. It is held, that an instruction is prejudicial, under the evidence, which authorized the jury to find for the defendant if the plaintiff was negligent and if his negligence “had anything to do” with bringing about his injuries.

The burden of proof is on the plaintiff to show that the operator of the truck was the agent or servant of the defendant and that he was acting within the scope of his employment, but, where it is shown that the truck was owned by the defendant and was operated by one who was employed for the special purpose and in the manner in which such trucks are usually operated, a presumption arises that the agent was acting within the scope of his employment. It is held, under the evidence, that the question as to whether the employee was engaged in the course of his employment at the time of the collision was a question of fact for the jury, notwithstanding the undisputed evidence of the employee that he was engaged upon an errand of his own.

Additional Syllabus by Editorial Staff.

On Petition for Rehearing.

Failure to make a request for instructions does not take away one's right to except to an erroneous or misleading charge, since, where court undertakes to instruct the jury on law applicable to case, it is its duty to give correct instructions as far as they go, and, in case law is misstated on a material point to prejudice of party, it is error.

Appeal from District Court, Ramsey County; C. W. Buttz, Judge.

Action by Charles H. Clark against M. Feldman. From a judgment for defendant and an order denying a motion for a new trial, plaintiff appeals. Reversed, and a new trial granted.

J. C. Adamson, of Devils Lake, and Francis Murphy, of Fargo, for appellant.

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

BIRDZELL, J.

This is an 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 and 9 a. m., the plaintiff, Clark, a man nearly 80 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 12 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 3 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 20 feet, or, as he explained later, within 20 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 courtroom, 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 you that the case was bottomed on negligence; that is, that if it was just a mere accident without negligence or carelessness of Melhouse, then Feldman would not be liable. That if you found that Melhouse was negligent, careless, guilty of a lack of ordinary care, and that you also found that Mr. Clark had been negligent or careless on his part, and his carelessness or negligence had brought about or helped in some way to bring about his injury, then he could not recover, even though Melhouse was negligent. In other words, under the law, a man who is himself negligent or careless and his negligence or carelessness results in his injuries, he can't recover damages no matter how negligent the person was who injured him. His negligence doesn't have to be the entire cause of the trouble, but if the plaintiff's negligence has any part in bringing about the injuries, he is said to have contributed or helped to bring about the injuries, and is therefore guilty of contributory negligence, that is, negligence or carelessness that contributed to or helped to bring...