Hart v. Grim, 14019.
| Decision Date | 17 January 1950 |
| Docket Number | No. 14019.,14019. |
| Parties | HART v. GRIM (EMPIRE STATE INS. CO., Intervener). |
| Court | U.S. Court of Appeals — Eighth Circuit |
William E. Heller, Fargo, N. D., for appellant.
P. W. Lanier, Fargo, N. D., (Lanier & Lanier, Fargo, N. D., and Joseph P. Stevens, Minot, N. D., on the brief), for appellee.
Before GARDNER, Chief Judge, and WOODROUGH and THOMAS, Circuit Judges.
Appellee D. F. Grim brought this action against appellant George Hart to recover damages for personal injuries and damage to property arising out of an automobile collision. Appellee Empire State Insurance Company intervened and became in effect a party plaintiff. The case was tried to a jury which returned a verdict in favor of D. F. Grim for $8,316.00 and in favor of the intervener for $350.00. As no questions are presented affecting the interest of the intervener it need not be further mentioned. We shall refer to appellee D. F. Grim as plaintiff and to appellant George Hart as defendant.
It is alleged in plaintiff's complaint that on or about November 15, 1948, while he was driving his automobile in an easterly direction on Highway No. 2 between Stanton and Berthold, North Dakota, over the top or crest of a hill, a truck trailer owned and operated by defendant came up the hill on the wrong side of the highway and was being negligently operated, and as a result of such negligence there was a collision between plaintiff's automobile and defendant's trailer truck, whereby plaintiff was seriously and permanently injured, and his automobile and other personal property were damaged.
Defendant by his answer denied all allegations of negligence and as an affirmative defense alleged that plaintiff was guilty of contributory negligence in that he was driving at an excessive rate of speed and failed to use ordinary care in keeping a proper lookout and in driving his automobile over and onto defendant's lane of traffic.
There was evidence that at the time of the accident plaintiff was driving easterly on Highway No. 2, going at a speed of approximately forty miles an hour; that when he reached the top of the hill or grade, he noticed the defendant's truck trailer coming toward him in a westerly direction, occupying the south or wrong side of the highway; that plaintiff thereupon stepped on his brakes, gradually slowing down his car, expecting at first that the driver of the defendant's truck would see him and turn over onto his own side of the highway; that as the two vehicles approached and it became apparent to plaintiff that the defendant's driver was not going to get over onto his side of the highway plaintiff was then confronted with an emergency and in order to avoid a head-on collision turned into the right hand ditch, swinging his car to the left over on the north side of the highway, and at about the same time the driver of defendant's truck also turned over onto the north side of the highway, resulting in the collision.
Testimony of behalf of the defendant tended to show that he was proceeding in a westerly direction and that at about the bottom of the hill he was going at a rate or speed of approximately twenty-two miles an hour; that when he had reached a point approximately 400 feet from the top of the hill, he noticed plaintiff's car coming toward him; that at that time defendant's truck was traveling with the left wheels approximately three feet out or to the wrong side of the center of the highway; that when he saw the plaintiff he turned immediately to his right and at the same time plaintiff turned his car into a northeasterly direction over onto the north side of the highway and that the collision occurred north of the center of the pavement. It was defendant's theory that plaintiff was responsible for the collision, or contributed thereto.
At the close of plaintiff's evidence defendant interposed a motion for a directed verdict in his favor, which motion was denied. Defendant then introduced evidence in support of his defense and the case was submitted to the jury on instructions to which certain exceptions were saved. The jury returned a verdict in favor of plaintiff as above noted and from the judgment entered on that verdict defendant prosecutes this appeal, seeking reversal on substantially the following grounds: (1) the court erred in denying defendant's motion for a directed verdict interposed at the close of plaintiff's case; (2) the court erred in admitting in evidence certain exhibits, known in the record as Exhibits 5 and 6, blue prints of drawings of certain portions of the highway; (3) the court erred in instructing the jury that it was negligence for the operator of a motor vehicle to operate the same upon the left or wrong side of the highway while traveling on an upgrade where his vision was bound to be obstructed.
While defendant interposed a motion for a directed verdict at the close of plaintiff's evidence, after his motion was overruled he introduced evidence in support of his defense. This constituted a waiver of his motion for a directed verdict. He failed to interpose a motion for a directed verdict at the close of the case. In this situation the question of the sufficiency of the evidence to sustain the verdict and judgment is not reviewable in this court. Harnik v. Lilley, 8 Cir., 167 F.2d 159; Black, Sivalls & Bryson v. Shondell, 8 Cir., 174 F.2d 587.
In the course of the trial counsel for plaintiff offered in evidence two blue print copies of maps of certain...
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