Cose v. Towner County

• Decision Date: 10 December 1959
• Docket Number: No. 7795,7795
• Citation: 102 N.W.2d 538
• Parties: Vivian COSE, Plaintiff and Respondent, v. TOWNER COUNTY, a Public Corporation, and Roy Peterson, Defendants and Appellants.
• Court: North Dakota Supreme Court

Page 538

102 N.W.2d 538

Vivian COSE, Plaintiff and Respondent, v. TOWNER COUNTY, a Public Corporation, and Roy Peterson Defendants and Appellants.

No. 7795.

Supreme Court of North Dakota.

Dec. 10, 1959.

On Rehearing May 2, 1960.

Syllabus by the Court

1. Questions of negligence and contributory negligence are questions of fact for the jury unless the evidence is such that reasonable men can draw but one conclusion therefrom.

2. The evidence in this case is considered and is held: that the undisputed proof will permit no reasonable inference as to the cause of plaintiff's decedent's injury, from which negligence on the part of the decedent as a substantial contributing factor can be eliminated.

Traynor & Traynor, Devils Lake, for appellants.

Duffy & Haugland, Devils Lake, for respondent.

BURKE, Judge.

This is an action for wrongful death. Plaintiff's decedent met his death in a collision between a car driven by him and a caterpillar propelled road maintainer operated by the defendant, Roy Peterson, as an employee of the defendant, Towner County. At the trial of the case, questions of negligence and contributory negligence were submitted to the jury. The jury returned a verdict against both defendants and judgment was entered on the verdict. After judgment, the defendants joined in a motion for judgment notwithstanding the verdict or for a new trial. This motion was denied in both its phases and the defendants have appealed both from the order of denial and from the judgment.

On the motion for judgment notwithstanding the verdict it was urged, that the evidence established contributory negligence upon the part of plaintiff's decedent as a matter of law, and that since the defendants were engaged in performing a governmental function at the time of the collision, they are shielded from suit by governmental immunity.

The collision occurred at about 5:30 p. m. on November 26, 1956. The day was clear and the visibility was good. The time was approximately one half hour after sunset or in the middle twilight. The defendant, Peterson, testified that it was possible to see 300 to 400 feet without lights and the witness, Mrs. Ahrentz, testified that she could see 250 to 300 feet. Immediately prior to the collision the road maintainer was proceeding southward spreading a windrow of gravel from the east edge of the highway. It was moving in the east lane of the highway or that which is ordinarily reserved for north bound traffic. The patrol was equipped with two operating lights located, one on each side of the top of the cab, nine and a half feet above the ground. The lights had been turned on about 5:00 o'clock p. m. They were focused at a point on the ground about fifteen feet ahead of the front end of the patrol. The patrol was not equipped with warning flags or colored lights of any kind.

The decedent was a farmer who resided about eleven miles north of Egeland. On the day before the collision he had driven home from Minneapolis, arriving some time after midnight or in the very early morning of the day of the accident. Between 8:00 and 9:00 o'clock of that morning he was in Cando. He left Cando some time in the afternoon and he left Egeland for his farm at about 5:30 p. m. The road north from Egeland is slightly undulating. It has shallow dips and low crests with long and moderate grades between. The dips are of sufficient depth, in some instances, to prevent the driver of a car at the low point of one dip from seeing a car at the bottom of a succeeding dip. About a half mile north of Egeland decedent passed a truck which was being driven by the witness, Hanson, in the same direction at a speed of about 40 miles an hour. Three miles north of Egeland decedent crashed head on into the county road maintainer. Just prior to the crash Peterson, the operator of the maintainer, had stopped it and taken it out of gear. As a result of the crash the whole front end of decedent's car was telescoped as far back as the rear of the from seat and the maintainer which weighed 15 tons was moved about three feet. At the time of the collision the maintainer was located at the bottom of one of the low spots in the road. The road was 31 feet wide and it was 18 feet from the west side of the maintainer to the west shoulder of the road. Peterson, the only surviving eye witness to the collision testified that he saw the lights of the approaching car for a considerable distance; that, when the car was 300 to 400 feet away, he came to the conclusion that a collision was bound to happen and, for that reason, stopped the maintainer and took it out of gear. He testified that decedent made no attempt to turn or avoid the collision or reduce his speed but came straight on as if he hadn't seen the maintainer. After the crash Peterson stepped down from his cab and went forward to see who was in the automobile that had struck his machine. He then turned to the north and saw the Ahrentz car approaching from that direction at a distance of about a half mile. He signaled the Ahrentz car and it stopped beside the road maintainer. At about the time the Ahrentz car stopped, Mr. Hanson in his truck came over the top of the knoll to the south. He saw the light from the maintainer shining upon the wreck and the lights of the Ahrentz car, which was then blocking the way around the maintainer to the west. Hanson, however, had no difficulty in stopping his truck, and he testified that it was 25 to 30 rods from the top of the knoll to the stop where the collision occurred. Both Peterson and the highway patrolman, who arrived at the scene an hour after the collision, testified that they examined the highway for skid marks that might have been left by the decedent's car and found none. Mrs. Ahrentz testified that she was proceeding south with her lights on low beam and that when she was about 400 feet north of the scene of the accident she saw '* * * the car jammed against the patrol, and a man standing there with his hand up asking us to stop.' She did not see or hear the crash.

Upon this record defendants assert that plaintiff's decedent was negligent as a matter of law and that his negligence contributed proximately to cause his injury and death. Questions of negligence and contributory negligence are questions of fact for the jury unless the evidence is such that reasonable men can draw but one conclusion therefrom. Rettler v. Ebreck, N.D., 71 N.W.2d 759; McCullagh v. Fortune, 76 N.D. 669, 38 N.W.2d 771; ...