Hausken v. Coman

• Decision Date: 16 July 1936
• Docket Number: No. 6379.,6379.
• Parties: HAUSKEN v. COMAN et al.
• Court: North Dakota Supreme Court

66 N.D. 633

268 N.W. 430

HAUSKEN

v.COMAN et al.

No. 6379.

Supreme Court of North Dakota.

April 27, 1936.

On Rehearing July 16, 1936.

On Rehearing.

Syllabus by the Court.

1. Under subdivision (n) of section 1, chapter 162, Session Laws of 1927, the Uniform Motor Vehicle Act, a “highway” is “every way or place of whatever nature open to the use of the public, as a matter of right, for the purpose of vehicular travel.”

2. The mere granting of leave to amend a pleading does not amend it. Unless the leave is acted upon and the pleading redrawn, including the desired change, the amendment is deemed abandoned.

3. In this action the negligence alleged in the complaint is specifically limited “to driving the said automobile then and there operated, drove and managed in a careless, negligent and wanton manner so that the same was violently propelled against the said Hans Jacob Hausken”; that is, the negligence is specifically limited to the management of the automobile at the time and place of the accident.

4. In a personal injury action where the plaintiff relies upon the nonperformance of a statutory obligation or duty, he must allege all the facts under the statute to create the duty and to bring his case within its terms, but he need not plead or refer to the statute.

5. Paragraph 8 of subdivision (b) of section 4 of chapter 158, Session Laws of 1931 (page 266), relating to the restrictions as to speed in the Uniform Motor Vehicle Act, providing that, “In every charge of violation of this section the complaint shall specify the speed at which the defendant is alleged to have driven, also the speed which this section declares shall be prima facie lawful at the time and place of such alleged violation,” is a criminal statute and does not apply to the pleadings in a civil action.

6. Where there are eyewitnesses to an accident, the issue of due care must rest upon proof and not upon presumption.

7. Where a complaint alleges that at the time and place of the accident the automobile was “managed in a careless, negligent and wanton manner so that the same was violently propelled against the said Hans Jacob Hausken,” it includes the issue of the last clear chance.

8. The introduction of plats and evidence to show that the defendant could, by the exercise of ordinary care, have avoided the accident by swerving his car to the south, or into a side roadway, was in support of the doctrine of discovered peril or the last clear chance, which doctrine could be urged under the pleadings and such doctrine should have been submitted to the jury with proper instructions.

9. Under subdivision (a) of section 45, chapter 162, Session Laws of 1927, as re-enacted by chapter 183, Laws of 1931, it is unlawful for any person at any time to use the horn on any motor vehicle upon any highway when not necessary and otherwise than as a reasonable warning, and the questions as to whether the sounding of the horn was necessary, and whether it was used as a reasonable warning, are, in all the circumstances in this case, for the jury.

10. Where the driver of an automobile on a public highway unlawfully sounds the horn when unnecessary and otherwise than as a reasonable warning, and thereby frightens and places a pedestrian in an apparent situation of sudden or imminent danger without his own fault, such pedestrian is entitled to the usual instruction on sudden peril and emergency; and the questions did the sounding of the horn place the pedestrian in an apparent situation of sudden or imminent danger without his own fault, or was the emergency due to the pedestrian's contributory negligence, are for the jury.

11. The negligence of the injured person will not bar recovery if it is shown that the defendant might, by the exercise of reasonable care and prudence, have avoided the consequences of the plaintiff's negligence, except where it also appears that the negligence of the injured person continued up to the very moment of the injury and was a contributing and efficient cause thereof.

12. The burden of proving that the defendant could, by the exercise of ordinary care, have avoided the accident is upon the plaintiff.

Appeal from District Court, Burleigh County; Fred Jansonius, Judge.

Action by Florence M. Hausken against L. R. Coman and another. Judgment for plaintiff, and defendants appeal.

Reversed and remanded.

BURR, J., dissenting in part.

Conmy & Conmy, of Fargo, for appellants.

Murtha & Murtha, of Dickinson, for respondent.

BURKE, Chief Justice.

This is an action for personal injury. From a judgment in favor of the plaintiff, the defendants appeal.

The complaint alleges that on the 6th day of November, 1934, Hans Jacob Hausken, the husband of the plaintiff, was lawfully, and with the exercise of due care, proceeding on foot upon that certain highway known as U. S. Highway No. 10, at a point thereon at the easterly edge of the city limits of the city of Glen Ullin, N. D., crossing from the south to the north thereon and being about eight feet from the northernmost edge of said highway, which highway at this point runs east and west. The said L. R. Coman at said time and place aforesaid, and while acting as agent, employee, and servant of the defendant corporation aforementioned, and while transacting their business as aforesaid, and while in charge of and driving the said automobile as aforesaid, then and there operated, drove, and managed the said automobile in a careless, negligent, and wanton manner, so that the same was violently propelled against the said Hans Jacob Hausken, causing the said car to collide with the said Hans Jacob Hausken and causing the said Hans Jacob Hausken to be violently struck and killed as the result of said collision and negligence of said L. R. Coman.

The answer admits that the defendant construction company is a corporation, and denies generally every other allegation in the complaint, and specifically denies that plaintiff's husband was injured because of defendants' negligence, and alleges the fact to be that his said injury was occasioned by the said negligence of plaintiff's husband and his own negligence contributed thereto.

It is conceded that the defendant Coman, at the time of the injury, was acting for and on behalf of the defendant construction company, a corporation.

On the morning of the 6th of November, 1934, the defendant was driving his automobile on Highway No. 10, approaching the city of Glen Ullin from the west. There is a dispute over the width of Highway No. 10 in the city of Glen Ullin, but the defendant introduced in evidence a photograph, Exhibit 1, which is conceded to be a photograph of the street where the accident occurred in the city of Glen Ullin at the time of the accident, except that the automobile between the pumps and the Standard Oil Filling Station was not there at that time; that space being unoccupied. From this photograph, Exhibit1 (which we include herein,) it appears that there are no gutters and the entire space between the curbs was used as a public highway:

IMAGE

Subdivision (n) § 1, c. 162, Sess.Laws 1927, the Uniform Motor Vehicle Act, defines “highway” as, “Every way or place of whatever nature open to the use of the public, as a matter of right, for the purposes of vehicular travel. The term ‘highway’ shall not be deemed to include a roadway or driveway upon grounds owned by private persons, colleges, universities or other institutions.” Subdivision (s) of section 1 of said chapter defines “business district” as, “The territory contiguous to a highway when fifty per cent or more of the frontage thereon for a distance of three hundred feet or more is occupied by buildings in use for business.”

There was no attempt to show by direct evidence that the accident happened in a business district, but the evidence does show three oil stations, a mill and elevator, and restaurant, and the photograph shows a number of business houses to the east.

The defendant came from the west. Joe Gietzen, testifying for the plaintiff, said that he was at the Texaco Filling Station on the north side of the street (not shown in the photograph) and west of where the accident happened. “I judge that Coman was traveling about 30 miles an hour when he passed the filling station. When Mr. Coman was about 75 or 80 feet from Mr. Hausken he honked his horn. The road at that point was about 60 feet wide. Coman at that time was about 10 or 12 feet from the north side of the road. Mr. Coman stopped as quick as he could stop. I should say the skid tracks turned slightly to the right, extending all the way to the car. At the point where Hausken and Coman met it was about 13 or 14 feet to the north edge of the road from the car tracks closest to the north. When the car stopped it was on the right hand side of the street, right in front of the roller mill, mostly on the right side of the road, just straddling a little. When Mr. Coman honked his horn Mr. Hausken jumped back about three steps, I believe 8 or 9 feet.

Q. What part of the car hit Hausken? A. More to the left side of the car, the bumper. * * *

Q. Do you know whether or not there is a roadway or place where vehicles have or can pass to the west of these roller mills and near the point of this accident? * * * A. * * * It is not what you call an alley or street, it is a common pass way.

It is about 70 or 80 feet from the point where the skid tracks began to where Mr. Hausken was hit. At the time of the accident I was standing at the Texaco Filling Station. It was 150 or 160 feet from where I was standing by the filling station to where the accident happened. The driveway to the Standard Oil Filling Station is about thirty feet wide. When Coman honked the horn Hausken had about three steps to go across and he turned back. He was going kitty cornered in a northeasterly direction. When he heard the horn blow he jumped up, threw his head around, looked west and east and then stepped back as fast as he could make it and ran right in...