OPINION
BURKE
This is an action for personal injury.
The
defendant Grob, an employee of the McCormick Transfer
Company, on the 14th day of May, 1929, while driving a truck
for the McCormick Transfer Company collided with one Eugene
Kalsow, the minor son of the plaintiff. Grob was driving the
truck south along 13th street North, in the city of Fargo,
opposite the Woodrow Wilson School. The children had just
been let out of school for the noon recess, and Grob
testified, that, "As I came to the corner of 13th street
and Third Avenue North, I saw a bunch of small children being
held back by a patrol boy. The patrol boy was standing on the
corner holding his hands out and keeping the children back
off the street. I was traveling at a speed of about ten or
twelve miles per hour, and when I turned into Third Avenue
North and started east on Third Avenue I slackened the speed
and held my hand out. There was a Ford car coming from the
east on Third Avenue. I made a full turn and I passed right
alongside of the Ford, possibly three or four feet between
us. He had been coming up Third Avenue, but it almost came to
a stop there, and just as I got over the sidewalk line this
little boy darted out from behind the Ford, and
just within an instant was right in front of the truck."
Question. "What was the distance between the Ford and
your truck?" Ans. "Possibly three or four feet. The
boy was moving fast." Ques. "How long did it take
him to travel from behind the Ford until he was under the
wheels of the truck?" Ans. "Approximately a half
second. When I first saw him I applied all the brakes. I
think the boy was struck before the brakes ever took hold.
The car had no horn and one side of the foot brakes was
defective. The emergency brake was in perfect condition and
was the brake to use for a quick stop."
John
Meyers, a witness for the plaintiff, testified; that he did
not see the accident, but he saw the boy start across the
street and after he got in the street he started running.
There was a patrol officer on 13th street, to keep the
children on the sidewalk and off the street but no patrol
officer on Third avenue until after the accident.
It is
conceded, that the brakes with the exception of the emergency
brake were defective
and that the emergency brake was in perfect order.
Arnold
Cofell was at the filling station on the west side of
Thirteenth street, right on the corner of Third avenue. He
said: "I was standing in the doorway of the station. I
saw the truck coming down 13th street and turn into Third
avenue. It was traveling about 10 miles per hour. There was a
Ford coming from the east; it slowed down practically to a
stop right at the sidewalk. At the time of the accident it
had practically stopped. I would say that the front end of
the Ford was right up to the sidewalk. The first I saw of the
boy I just got a glimpse of him running out from behind this
car, and it was just part of a second and then I saw him fall
down in front of the truck. He seemed to stumble and fell
before the car hit him."
The
errors specified all relate to the instructions of the trial
judge, first, the court erred in instructing the jury in
substance, that Eugene Kalsow, deceased, being a minor of the
age of six years and four months was capable as a matter of
law of contributory negligence. It will be noted that this
specification does not give the instruction, but states, that
the trial judge in substance so instructed the jury. We have
been unable to find any such instruction in the record.
Second,
that the court erred in instructing the jury, that the
plaintiff could not recover for the loss of
society or companionship, comfort, joy or pleasure which
might come to him if the child had continued to live. Counsel
in his brief states, that the lower court's instructions
are in accordance with the decisions of our supreme court,
but thinks that the former decisions of this court should be
overruled.
In the
case of Haug v. Great Northern R. Co. 8 N.D. 23, 42
L.R.A. 664, 73 Am. St. Rep. 727, 77 N.W. 97, 5 Am. Neg. Rep.
467, this court said: "Upon one point the cases are
united, and that is that the only damages recoverable in this
action are for the pecuniary loss. Nothing can be recovered
for the loss of society or for damages in the way of
solatium." Scherer v. Schlaberg, 18 N.D. 421,
24 L.R.A. (N.S.) 520, 122 N.W. 1000; Stejskal v.
Darrow, 55 N.D. 606, 53 A.L.R. 1096, 215 N.W. 83.
The
instruction is in accordance with what has been the settled
law of this state for more than thirty years, and also with
the great weight of authority.
Third,
the court erred in instructing the jury in the following
language: "It has been claimed here by the defendants
and in evidence to some extent that the fault was on the part
of the little boy that was injured and afterwards died; that
it was due to their carelessness and negligence and that it
could not be avoided by the defendants. If this be true, then
the negligence of the boy would be the negligence of the
father, the plaintiff, and if it was on account of the
negligence of the boy that was injured and killed and on
account of his fault, and it couldn't have been avoided
if the defendant's employee, the defendant Grob was
driving the truck at that time and at that place in an
ordinarily prudent manner, such as an ordinarily prudent
person would under all of the circumstances and conditions,
then and in that case the plaintiff would not be entitled to
recover." This specification must be considered together
with the fourth specification, viz.:
"I
charge you further, that in passing a public school where
children are attending, that a person driving a truck or an
automobile must keep a vigilant lookout ahead, and need not
anticipate that persons will, when he is passing, from the
side deliberately run into the highway or street ahead of or
on to the truck or automobile that he is driving, but I
charge you in this connection that he must have his truck or
automobile under such control that if he has reasonable
notice of a person appearing suddenly and at a
reasonable distance from him, that he can check and control
such truck or automobile and avoid an accident or a
collision. But I charge you in this case, that it is for the
jury to determine under all of the evidence in the case,
whether or not the child that was injured, and afterwards
died, the child of the plaintiff, was at fault in suddenly
appearing or running or walking on the street so close to the
truck that was driven without notice to the man that was
driving the truck that he could not avoid the injury; that if
that was the condition at the time and the injury occurred
and resulted on account of the fault of the deceased boy,
then and in that case, the plaintiff would not be entitled to
recover. I charge you however, as I said before, that in
order to determine this, you must take into consideration all
the evidence, both that on the part of the plaintiff and that
on the part of the defendants, weigh, consider and compare it
altogether, and when you have done so determine upon your
verdict."
The
court also gave the following instructions: "A person
driving an automobile or a truck upon the street, must keep a
careful lookout ahead for the purpose of avoiding injury to
persons and property, and a person traveling upon the street
must keep a lookout, a reasonable lookout in all directions,
that is to say both sides of the street or highway that he is
traveling. If he is traveling upon a street or highway that
is built up with residences or public buildings, and if as in
this case he is passing a public school that is in session at
that time and being attended by pupils, this lookout must be
continuously kept up with a view to avoiding, as I said
before, any injury or damage to any person or property."
The
court read at length to the jury the statute on reckless
driving. The statute relating to the duties in crossing an
intersection of highway relating to turning to the right at
intersections. The statute relating to the duties in crossing
an intersection or highway relating to turning to the right
at intersections. The statute in relation to starting and
stopping, the statute relating to the driver of any vehicle
upon a highway within business or residence district, the
statute relating to brakes and horns upon a motor vehicle.
The
court did not submit to the jury the question of the
contributory negligence of the plaintiff. He did say, in the
instructions excepted to, "If it was on account of the
negligence of the boy that was injured and
killed and on account of his fault," but this is
immediately followed by the statement, "and it
couldn't have been avoided and if the
defendant's employee, the defendant Grob, was driving the
truck at the time, and at that place in an ordinarily prudent
manner such as an ordinarily prudent person would under all
of the circumstances and conditions then and in that case the
plaintiff would not be entitled to recover." This is
followed by the statement, "but I charge you in this
connection in this case that it is for the jury to determine
on all of the evidence in the case whether or not the child
that was injured and afterwards died was at fault in suddenly
appearing in running or walking upon the street so close to
the truck that was driven without notice, to the man that was
driving the truck, that he...
