Fagerlund v. Jensen

• Decision Date: 30 October 1946
• Docket Number: 7018.
• Citation: 24 N.W.2d 816,74 N.D. 766
• Parties: FAGERLUND v. JENSEN.
• Court: North Dakota Supreme Court

24 N.W.2d 816

74 N.D. 766

FAGERLUND v. JENSEN.

No. 7018.

Supreme Court of North Dakota

October 30, 1946

Rehearing Denied Nov. 27, 1946.

Syllabus by the Court.

On an appeal from the judgment alone, where appellant urges that the court erred in denying a motion for judgment notwithstanding the verdict, this court will review the evidence merely to consider the sufficiency of the evidence to sustain the verdict, regardless of conflicting testimony and in doing this adopts that view of the evidence which is most favorable to the respondent.

John A. Stormon, of Rolla, for plaintiff-respondent.

Kehoe & Kehoe, of Cando, and F. T. Cuthbert, of Devils Lake for defendant-appellant.

BURR, Judge.

This is an action to recover damages resulting from a collision on the streets of Rolla between a truck driven by the plaintiff and a truck belonging to the defendant owner of a carnival company, and driven by his employee.

The complaint alleges the collision was caused by the negligence of the defendant and that plaintiff was damaged to the extent of $700. The answer admits the collision, but the defendant specifically denies he was guilty of any negligence. He 'further alleges that if he were guilty of any negligence, the plaintiff was guilty of contributory negligence.' The matter of a counterclaim is not before us on this appeal.

At the close of plaintiff's case the defendant moved the court to direct a verdict for the dismissal of the case on the ground 'it is conclusively shown that the plaintiff is guilty of contributory negligence. For the further reason that the testimony shows that the plaintiff violated the traffic laws of the State of North Dakota, more particularly Section 39-0703 and 39-1011 and 39-1013 of the North Dakota Revised Codes of 1943.' He renewed this motion at the close of the entire case.

The jury returned a verdict in favor of the plaintiff for $500. Upon the return of the verdict the defendant moved the court 'to set aside that verdict as being contrary to the law and facts, and to enter a judgment for the defendant for the dismissal of the action notwithstanding the verdict.'

The court denied these motions and entered judgment in favor of the plaintiff according to the verdict.

Defendant appealed from the judgment and specified as errors the rulings of the court with reference to the aforesaid motions, and in addition three alleged errors in the charge to the jury.

No motion for a new trial was made; hence we do not review the evidence in the case except to consider the sufficiency of the evidence to sustain the verdict regardless of conflicting testimony. In determining this issue the court must adopt that view of the evidence which is most favorable to the respondent. Taylor v. Minneapolis, St. Paul & Sault Ste. Marie Railway Co., 63 N.D. 332, 248 N.W. 268; Chubb v. Baldwin Piano Co., 54 N.D. 189, 192, 208 N.W. 975, 976; Froemke v. Otter Tail Power Co., 68 N.D. 7, 276 N.W. 146.

We said in Barkley v. Quick et al., 33 N.D. 124, 130, 156 N.W. 544, 545, 'It is, of course, elementary that upon a motion to direct a verdict in favor of either party the court will accept as true the evidence produced by the opposite party. If there is sufficient competent evidence to sustain the verdict the same will not be disturbed. It is not material that there was a conflict in the evidence. Nor are we interested in defendant's version of the contract.'

On the argument the defendant conceded there was ample evidence as to his own negligence to justify submission of that question to the jury; but argued earnestly that had it not been for the contributory negligence of the plaintiff there would have been no collision.

Main street in Rolla runs practically east and west and Front street intersects Main street, running north and south. Main street is what is known as a stop street. Plaintiff was driving south on Front street, traveling at a rate of between 17 to 20 miles per hour. It was his purpose to turn east on Main street.

As illustrative of respondent's testimony with reference to two trucks belonging to the carnival company we quote his statement of what took place as he approached the intersection. He said,

'I approached the intersection and as I approached that I noticed a truck, a ton and a half Chevrolet, I think it was, entering the intersection I was approaching. It was a peculiarly painted truck----. * * *

'Just coming up to the intersection I was approaching. And I stopped and this truck turned south on Front Street, that is, made a lefthand turn off Main Street down Front, and at the same time as I was about to enter the intersection I saw the second truck traveling * * * that is a wide, square corner there,--and I saw the second truck coming down the street I believe about in the vicinity of two hundred feet down the street, or that would place it about in front of Monroe's hardware, or in that vicinity of the block. Deeming that I had plenty of time to cross the intersection, I crossed through the intersection and was across the sidewalk line between the intersection and Main, by that I mean completely through the intersection and starting down Main Street, when the accident occurred. * * * At Main and Front, approximately an 80-foot square.' On cross-examination he said in part: 'The accident didn't occur in the intersection. I had ample time to go through the intersection. I was going down the street when the accident occurred, not in the intersection. I was through the intersection and thirty feet down the street or thereabouts.'

The defendant's truck involved was the second of two trucks which belonged to this carnival company which was leaving for Belcourt. The route of these trucks was west on Main Street to Front Street, thence south. They were about 280 feet apart and their speed was approximately 20 miles per hour. The truck involved was being operated by an employee named Thomas. It was the purpose, therefore, of Thomas following the lead truck, to turn to the left into Front street. When he reached the intersection he was on the south side of Main street, taking a rather sharp turn into Front Street.

Ex. 1, made by the police officer who reported the traffic accident contains a plat showing his report as to the place of the collision. He was at the scene of the accident a few minutes after it occurred and saw the trucks as they stood at the time of the collision. This exhibit was introduced by the defendant. It shows the collision took place at a spot entirely on the south side of Main street, and at least 30 feet east of the center of the intersection. It locates the scene of collision by diagram and places the situs at the boundary of the northeast quarter of the intersection and a short distance from its southeast corner. Plaintiff testified the impact of the...