Henke v. Peyerl

• Decision Date: 18 March 1958
• Docket Number: No. 7746,7746
• Citation: 89 N.W.2d 1
• Parties: Elmer HENKE, Plaintiff and Respondent, v. Xavier PEYERL, Charles Williams and Rue Contracting Company of Fargo, North Dakota, a corporation, Defendants and Appellants.
• Court: North Dakota Supreme Court

Page 1

89 N.W.2d 1

Elmer HENKE, Plaintiff and Respondent, v. Xavier PEYERL, Charles Williams and Rue Contracting Company

of Fargo, North Dakota, a corporation, Defendants

and Appellants.

No. 7746.

Supreme Court of North Dakota.

March 18, 1958.

Syllabus by the Court

1. It is the duty of the driver of a motor vehicle on a highway which intersects a through highway to come to a full stop at a point where he can effectively observe what traffic is approaching upon said through highway, and having stopped, it is his duty to remain there and yield the right of way not only to vehicles which have entered the intersection from the through highway, but to those vehicles approaching so closely as to constitute an immediate hazard.

2. Gross negligence is generally a question of fact for the jury. It becomes a question of law only when it is clear that but one conclusoin may be drawn from the facts. If reasonable minds might draw different conclusions from the evidence, the question is for the jury.

3. The driver upon a highway intersecting a favored highway, who has stopped as required, does not acquire right of way immediately after stopping as against all vehicles in the favored thoroughfare which have not as yet reached the intersection. It is his duty to yield not only to the vehicles within the intersection, but also to approaching vehicles in such proximity thereto as to constitute an apparent and immediate hazard.

4. A driver upon a through highway is entitled to assume that those approaching it will obey the law and stop. He is not obliged to have his car under such control at each intersecting road that he may stop at once and avoid a collision with persons who may illegally come into his path.

5. A motion for reduction of a verdict or a new trial is addressed to the sound judicial discretion of the trial court and will not be disturbed on appeal except in case of manifest abuse of discretion.

6. In this state damages awarded in wrongful death actions have been based primarily on the pecuniary loss incurred by the death to the person entitled to recover under the statute.

7. While no exact definition of pecuniary loss has been laid down by this court, monetary loss is not the equivalent of pecuniary loss. Neither is pecuniary loss necessarily confined to the minority of a child.

Duffy & Haugland, Devils Lake, for appellants Williams and Rue Contracting Co.

Traynor & Traynor, Devils Lake, for appellant Peyerl.

Erickstad & Foughty, Devils Lake, for respondent.

JOHNSON, Judge.

This is an action for wrongful death under Chapter 32-21, NDRC 1943, brought by Elmer Henke, the father of Susan Henke, a girl 13 years of age, who died on June 11, 1956, as a result of injuries received in an automobile collision between the defendants, Xavier Peyerl and Charles Williams, which occurred at the intersection of Highways No. 2 and 20 on the evening of June 9, 1956, at about 11:30 p. m. The plaintiff's action against the defendant Peyerl is predicated on gross negligence on his part proximately causing the injuries from which Susan Henke died, and loss of her services.

As against the defendants Charles Williams and the Rue Contracting Company, a corporation, the plaintiff's action is based on the alleged negligence of Charles Williams in the operation of his automobile at the time of the accident, as an employee of the defendant Rue Contracting Company. The recovery sought against the Rue Contracting Company is solely on the basis that Charles Williams was, at the time of the accident, acting in the course of his employment, thus imposing liability upon the corporation for his alleged negligence.

The defendant Peyerl admitted the time and place of the accident and the death of Susan Henke, and that she was a guest in his car at the time of the accident. He denied that he was grossly negligent in the operation of his automobile at the time of the accident, and he alleged that if he was negligent in any way, Susan Henke assumed the risk of such negligence. He also charges that the negligence of Charles Williams was solely responsible for the accident and the proximate cause thereof.

Charles Williams, in his separate answer, also admitted the time and place of the accident, but denied it was caused by his negligence and asserts that it was caused solely by the negligence or the gross negligence of the defendant Peyerl, because of his failure to stop prior to entering the intersection of Highways No. 2 and 20. He alleges that Highway No. 2 is an arterial, through highway and that the defendant Peyerl failed to keep his car under proper control and was negligent or grossly negligent, and therefore, solely responsible for the accident. The Rue Contracting Company, a corporation, in its separate answer, also admits the time and place of the accident, but denies that it was caused by negligence or carelessness on its part, and also denies that Charles Williams, at the time of the accident, was driving on behalf of the company, or in the course of his employment as its employee.

The case was tried to a jury. It rendered a verdict against all three defendants for $7,800. All three defendants, at the close of the trial, made motions for a directed verdict. These motions were denied. Thereafter the defendant Peyerl made a motion for judgment notwithstanding the verdict or in the alternative for a new trial, or in lieu thereof, for a reduction of the verdict. These motions were based on errors of law occurring at the trial and insufficiency of the evidence. The motions were denied. The defendants, Charles Williams and Rue Contracting Company, separately, made motions for judgment notwithstanding the verdict or for a new trial, basing them upon the insufficiency of the evidence to sustain the verdict, errors of law occurring during the trial, and the excessiveness of the verdict. We will not set out all of the alleged errors claimed by the parties, but will deal with them insofar as they affect the determination of the issues involved.

The defendant Peyerl appealed to this court from the judgment dated November 28, 1956, and from the order denying judgment notwithstanding the verdict, or in the alternative for a new trial, and also from the order denying a reduction of the verdict. The other defendants have also appealed from the judgment and the order of the trial court dated May 4, 1957, denying their motion for judgment notwithstanding the verdict or in the alternative for a new trial.

The first question for our consideration is whether or not, under the evidence and circumstances disclosed, the defendant, Xavier Peyerl, was grossly negligent, proximately causing the accident in which Susan Henke received injuries from which she died.

Highway No. 2 has been designated as an arterial or through highway. It runs from east to west across the entire length of the northern part of the State of North Dakota. Highway No. 20 intersects Highway No. 2 just south of the City of Devils Lake. Stop signs are posted north and south of Highway No. 2 where Highway No. 20 intersects it, warning all persons traveling thereon to come to a complete stop before attempting to enter and cross Highway No. 2. Under Section 39-0703, NDRC 1943, the Highway Commissioner may designate main traveled or through highways by erecting signs at the entrance thereto from intersecting highways, 'notifying drivers of vehicles to come to a full stop before entering or crossing such designated highway.' Both the defendant Peyerl and his wife testified that the defendant Peyerl came to a stop south of Highway No. 2 before attempting to enter or cross Highway No. 2 on their way home to Penn, North Dakota. They had taken their children and Susan Henke to a celebration at Tolna, North Dakota, where Susan Henke performed as a member of an accordian band. The defendant Peyerl testified that he stopped somewhere between 50 and 100 feet south of the stop sign at the entrance to Highway No. 2. There is evidence indicating that Peyerl may not have stopped at or near the stop sign on Highway No. 20. Although the defendant Peyerl claims he looked both east and west he did not see the Williams car on No. 2 traveling west. It is apparent from the evidence that Mr. Williams was in the intersection between Highways No. 2 and 20 when the collision occurred. The Peyerl car hit the left front wheel of the Williams car in his lane of travel. The Peyerl car, it is claimed, was traveling at the rate of 15 to 20 miles per hour at the time of the collision. Just before it occurred someone in the Peyerl car warned him. Skid marks left by his car on the highway were found measuring 25.6 feet. Mr. Peyerl gives no reason for the presence of the Williams car on the highway, except to say, 'Only reason could be he wasn't there.' Later he testified:

'Well could be car wasn't there at time when I looked, or he had no light on there, or maybe could have been blinded from that light coming against me.'

If Mr. Peyerl stopped as he says somewhere between 50 and 100 feet south of the stop sign on Highway 20, he either did not have an opportunity to properly observe Highway No. 2 or he did not see what must have been plainly visible, a car coming from the east. If Mr. Peyerl did not have an adequate opportunity to observe and determine the state of the traffic on Highway No. 2 at the place he stopped, south of the stop sign on Highway 20, it was his duty to stop somewhere between the stop sign and the intersection of Highways No. 2 and 20 to determine whether it was safe for him to enter and cross Highway No. 2. That is plainly the meaning of our statute when it states:

'to come to a full stop before entering or crossing such designated highway' (referring to a through highway.)

The undoubted purpose of the statute, as is stated in Marsden v. O'Callaghan, N.D., 77 N.W.2d 522, 529, is

'the requirement that a driver of a motor vehicle come to a full stop before entering or crossing a...