Jasper v. Freitag

• Decision Date: 20 October 1966
• Docket Number: No. 8337,8337
• Citation: Jasper v. Freitag, 145 N.W.2d 879 (N.D. 1966)
• Parties: Edith M. JASPER, Plaintiff and Appellant, v. Karroll FREITAG, Farmers Oil Company of Cooperstown, a North Dakota corporation, and Clifford Young, Defendants and Respondents.
• Court: North Dakota Supreme Court

Page 879

145 N.W.2d 879

Edith M. JASPER, Plaintiff and Appellant, v. Karroll FREITAG, Farmers Oil Company of Cooperstown, a North Dakota corporation, and Clifford Young, Defendants and Respondents.

No. 8337.

Supreme Court of North Dakota.

Oct. 20, 1966.

Syllabus by the Court

1. Questions of negligence, contributory negligence, and proximate cause of an injury are questions of fact for the jury unless the evidence is such that only one conclusion can be reasonably deduced therefrom. It is only where reasonable men can draw but one conclusion therfrom that the questions of negligence and contributory negligence become questions of law for the court.

2. Where there is a conflict in the evidence, it is for the jury to determine the facts. This court will not reverse an order denying a motion for new trial on the ground of insufficiency of the evidence, where the verdict is supported by substantial evidence.

3. Instructions to the jury must be considered and construed as a whole. When an isolated portion of an instruction, standing alone, contains an erroneous statement of the law, error cannot be predicated thereon where the charge as a whole is not subject to objection.

4. The instruction given by the trial court on the matter of lights on the rear of defendant's semitrailer examined, and, for reasons stated in the opinion, we find it to be proper under the provisions of the law in effect at the time the cause of action in this case arose.

5. The negligence of the driver of a car in which the owner is riding at the time of an accident is not imputed to owner as a matter of law.

6. The test of the liability of an owner, riding in his automobile while it is being driven by another, is whether he had a reasonable opportunity, under the facts and circumstances of each particular case, to exercise the right to control its operation.

7. A plaintiff-owner is barred from recovery if the negligence of a third person is a legally contributing cause of his injury, and the plaintiff has been negligent in failing to control the conduct of such person if, under the circumstances of the case, he had a reasonable opportunity to exercise the right to control.

8. The mere presence of the owner in the automobile while it is being driven in a negligent manner will not necessarily make such owner liable for an injury caused by such operation nor impute such negligence of the driver to such owner-passenger. This is especially true in case the driver is the husband of the owner-passenger.

9. A husband is head of the family, and, when he is driving his wife's car, even with her riding in the car as a passenger, there is a rebuttable presumption that he is in control of such operation.

10. For reasons stated in the opinion, the judgment is reversed and the case is remanded for new trial.

Wattam, Vogel, Vogel, Bright & Peterson, Fargo, for plaintiff and appeallant.

Nilles, Oehlert, Hansen, Selbo & Magill, Fargo, for defendants and respondents.

STRUTZ, Justice.

The plaintiff brings this action for personal injuries which she claims to have suffered on October 15, 1962, when the car in which she was riding collided with the rear of an oil truck on the public highway. The plaintiff was the owner of the car in which she was riding which, at the time of the collision, was being driven by her husband.

The facts established by the record disclose that the plaintiff and her husband, who reside in Larimore in Grand Forks County, made a trip to Fargo on the day of the accident for the purpose of attending some wrestling matches. After the matches, they stopped for coffee and then left Fargo for home, at approximately 10:25 p.m. It was a rainy, misty night in October, and for a part of the way, at least, the highway was wet. The traffic was very light and, as they drove north between Fargo and Grandin, where the accident occurred, the record shows that they met only three oncoming cars. These three vehicles met the Jasper car a short time before the accident. Shortly after meeting the last of these vehicles, the plaintiff's husband noticed the defendant's transport in the driving lane for northbound traffic, in which lane the plaintiff's automobile was moving. When the driver of the plaintiff's car first noticed the defendant's transport, it was approximately three car lengths in front of him. The plaintiff and her husband testified that the transport had no rear lights burning, and that, although Jasper applied his brakes, his car collided with the rear of the transport with great force and violence, causing the personal injuries complained of by the plaintiff.

The driver of the defendant's vehicle testified that he had stopped to rest at a service station just off the main highway at Grandin; that after taking a short nap he started his motor, turned on his lights, and then got out of the cab to check his vehicle, including the tires and the lights; and that at that time all of his lights, both in front and at the rear of his equipment, were burning. He then drove from the service station to the stop sign at the intersection with the highway, stopped, and allowed two cars coming from the north to pass, and then rechecked to determine whether any traffic was approaching from the south. He estimated that, as he was stopped at the intersection, he could see approximately two miles to the south, the direction from which the Jasper car was approaching, and that he did not see any approaching traffic. The record shows that, approximately 1,000 feet to the south of the intersection, the highway angles to the southeast and at this point there is a slight rise in the highway.

After allowing the cars from the north to pass and after rechecking to determine whether any traffic was approaching from the south, the driver of the defendant's transport entered the intersection. He had driven into the right lane for northbound traffic and had proceeded for some distance down the highway, when he suddenly heard the squeal of brakes and then felt the impact as the Jasper car hit the rear of his semitrailer.

The highway patrolman who investigated the accident placed the point of impact 234 feet north of the center of the intersection where the defendant's transport had entered the highway. The record also shows that the defendant's transport was over fifty feet in length, so that the front of the transport had traveled 284 feet from the center of the intersection prior to impact. The evidence also shows that the transport was loaded with 8,000 gallons of gasoline and heating fuel, and weighed over 70,000 pounds.

The plaintiff's cause of action is based on the alleged negligence of the defendant-driver of the transport in failing to maintain a proper lookout for oncoming traffic, failing to yield the right of way, and failure to have the transport properly lighted. Defendant, on the other hand, contends that the accident was caused solely by the negligence of the driver of the plaintiff's car, and that the plaintiff, as owner of this automobile, was in control of the vehicle in which she was riding and which was being driven by her husband, and that therefore the negligence of her husband was imputable to her.

On this record, the jury returned a verdict for the defendant. The plaintiff moved for a new trial, which motion was denied by the trial court. This appeal is from the order denying the motion for new trial and from the judgment entered on the verdict.

This court repeatedly and consistently has held that questions of negligence, contributory negligence, and proximate cause of an injury are questions of fact for the determination of the jury, and that unless the evidence is such that only one conclusion can reasonably be deduced therefrom, such determination by the jury is final and binding on this court. It is only when the facts and circumstances are such that reasonable men can draw but one conclusion therefrom that the question of negligence and contributory negligence becomes a question of law for the court. Armstrong v. McDonald, 72 N.D. 28, 4 N.W.2d 191; Leonard v. North Dakota Co-op. Wool Market. Ass'n, 72 N.D. 310, 6 N.W.2d 576; Froh v. Hein, 76 N.D. 701, 39 N.W.2d 11; Huus v. Ringo, 76 N.D. 763, 39 N.W.2d 505; Rokusek v. Bertsch, 78 N.D. 420, 50 N.W.2d 657; Lindenberg v. Folson, 138 N.W.2d 573 (N.D.1965).

The jury having found for the defendants, we first must examine the record to see whether there is any evidence upon which the jury could reasonably have made its determination, for, unless the evidence is such that reasonable men could draw but one conclusion therefrom, its determination on the questions of negligence and contributory negligence is binding on this court.

In support of her allegations of negligence on the part of the defendants, the plaintiff contends that the driver of the defendant's transport entered the intersection when the car in which the plaintiff was riding was within such distance that it was negligent for him to so enter without waiting for the plaintiff's vehicle to go by. The defendant-driver, on the other hand, testified that he had looked in both directions before entering the intersection and he had not seen the Jasper car approaching. He further testified that he had entered the intersection, had started down the highway, and had traveled for approximately thirty seconds in a northerly direction in the right-hand lane of the highway when his trailer was struck from the rear. According to measurements made by the highway patrol, the rear of the defendant's fifty-foot transport was 234 feet north of the center of the intersection at the time of impact. If the Jasper car was traveling at the rate of forty to fortyfive miles an hour, as claimed by the plaintiff, it would have traveled in excess of one-third of a mile in the thirty seconds which elapsed between the time the defendant entered the intersection and the time of impact. Thus the jury could find from the evidence that the car...