Kelmis v. Cardinal Petroleum Co.

• Decision Date: 15 January 1968
• Docket Number: No. 8420,8420
• Citation: 156 N.W.2d 710
• Parties: Donna L. KELMIS, for the Use and Benefit of Herself and Charles Joseph Kelmis, Jr., Ricky Lynne Kelmis, David Lee Kelmis, Jeffrey Scott Kelmis, and Carla Dee Kelmis, Plaintiff and Appellant, v. CARDINAL PETROLEUM COMPANY, a Foreign corporation, Defendant and Respondent. Civ.
• Court: North Dakota Supreme Court

Page 710

156 N.W.2d 710

Donna L. KELMIS, for the Use and Benefit of Herself and Charles Joseph Kelmis, Jr., Ricky Lynne Kelmis David Lee Kelmis, Jeffrey Scott Kelmis and Carla Dee Kelmis Plaintiff and Appellant, v. CARDINAL PETROLEUM COMPANY, a Foreign corporation, Defendant and Respondent.

Civ. No. 8420.

Supreme Court of North Dakota.

Jan. 15, 1968.

Rehearing Denied March 1, 1968.

Syllabus by the Court

1. On appeal from a judgment in an action tried without a jury, where the appellant demands a trial de novo, the appellate court will try the case anew, giving appreciable weight to the findings of the trial court.

2. Where two highways intersect and traffic on one of such highways is given the right of way over traffic on the intersecting highway by signs requiring traffic on the intersecting highway to yield to traffic on the favored highway, the failure of the driver of a vehicle on such favored highway to keep a proper lookout for traffic approaching on such intersecting highway, even though he has the right of way, is negligence.

3. A driver on a favored highway must look for approaching vehicles on intersecting highways, and his lookout must be such that he will see what a person in the exercise of ordinary care would see under like circumstances.

4. For reasons stated in this opinion, it is held that the conduct of the defendant's driver constituted negligence, and that such negligence contributed proximately to the accident.

5. Where decedent's injuries resulted from separate and distinct acts of negligence by different persons, occurring simultaneously, each act may be considered as a proximate cause of the injuries.

On Rehearing

6. Where defendant's driver was warned by a sign 500 feet from the intersection that he was approaching a junction protected by 'yield' signs, it became his duty at that point to determine whether there were any vehicles approaching the intersection. His failure to maintain a lookout was negligence. Whether such negligence was remote or was a proximate cause of the collision which occurred in the intersection depends upon what he did as a result of not maintaining a lookout. Where he continued into such intersection without slowing his speed, when it is reasonable to assume that, had he maintained a lookout, he would have slowed his progress when he saw that the driver of another vehicle was negligently failing to yield, his negligence in failing to keep a proper lookout was a proximate cause of the collision which resulted.

Pringle, Herigstad, Meschke, Loder, Mahoney & Purdy, Minot, for plaintiff and appellant.

Palda, Palda, Peterson & Anderson, Minot, for defendant and respondent.

STRUTZ, Judge.

This is an action for the wrongful death of Charles Kelmis, the plaintiff's husband, brought by the plaintiff as the surviving wife, for herself and for the use and benefit of the five surviving minor children of the plaintiff and the deceased.

Pursuant to a written motion by the plaintiff, the trial court ordered the issues of liability and damages tried separately, and thereafter proceeded to try the issue of liability. After hearing on this issue, the court ordered that the plaintiff's action be dismissed. From judgment entered pursuant to such order, the plaintiff has appealed to this court, demanding trial de novo.

There is not much dispute as to the facts. At the time of the accident, the plaintiff's husband was employed by The Boeing Company. On the morning of the accident he, with three other employees of that company, was en route to a missile site designated as 'Mike-One,' with one of such employees, Andrew Freed, driving a 1965 Plymouth sedan which Boeing had leased from National Car Rentals. Plaintiff's decedent was riding as a passenger in the left rear of the car. The supervisor of the crew was riding as a passenger in the right front seat. The driver and the other employees, including the plaintiff's decedent, were mechanics employed by Boeing.

This crew left Minot on the morning of the accident at approximately 7:05, en route to Missile Site Mike-One. They proceeded north on U.S. Highway No. 83 to the Lansford intersection and turned west on county highway No. 16, which is a graveled road. Freed, the driver, testified that as he drove west on county highway No. 16 he was traveling between fifty and fifty-five miles an hour, while the defendant's driver testified that defendant's vehicle was traveling about 40 miles an hour.

The driver of the car was the only survivor of the Boeing crew involved in the accident. He evidently suffered amnesia as a result of injuries received, for he cannot not remember anything after passing a point on highway No. 16 some twelve miles east of the scene of the collision.

The other vehicle involved in the accident was the defendant's 1964 Mack tractor and trailer, weighing 37,000 pounds, which had an over-all length of fifty-four feet. It was being driven by an employee of the defendant, Cardinal Petroleum Company, who admittedly was operating the vehicle at the time of the accident in the course of his employment. This vehicle was en route to an oil well being drilled north of Carpio. The vehicles collided at the intersection of county highway No. 28 and county highway No. 16. At the point of the accident, county highway No. 28 runs north and south, while county highway No. 16 runs in an easterly and westerly direction.

It is undisputed that traffic on county highway No. 16, as it approaches the intersection with county highway No. 28, is controlled by a 'yield right of way' sign. It is also conceded that as county highway No. 28 approaches the intersection with county highway No. 16, there is a sign approximately 500 feet from the intersection giving notice of the approaching junction.

From the record in this case, it is apparent that the intersection of the two highways is a wide-open intersection. There are no buildings, no trees, no hills, nor vegetation which could have obstructed the visibility of either driver for a distance of at least one-half mile from the intersection, with the exception of a slight knoll about 100 feet in length on highway No. 16, approximately 1,000 feet east of the intersection. It is contended by the defendant that if a car should happen to be behind the knoll when a driver approaches the intersection from the north on highway No. 28, the car on highway No. 16 would be hidden from view for a distance of about 100 feet. This knoll, however, ends 1,000 feet east of the intersection, and for the last thousand feet a vehicle approaching from the east on highway No. 16 would be in plain view from highway No. 28.

The record also discloses that the weather on the morning of the accident was clear, and that the highways were in good winter driving condition. There was some snow in the ditches, but the highways were clear.

The only eyewitness to the accident who was able to testify was the driver of the truck, since the only survivor of the crew traveling in the Boeing car does not remember anything concerning the accident. The truck driver does not remember whether he looked to the east for traffic approaching the intersection on county highway No. 16, but he believes that he did so because he always looked for oncoming traffic when approaching an intersection. He did not, however, observe the Boeing car until it was at the intersection, directly in front of him. He then slammed on his brakes, but collision at that time was unavoidable and he collided with the Boeing car with great force and violence, killing three of its occupants. The collision occurred in approximately the center of the intersection. There were no tire marks on highway No. 16 to indicate that the Boeing car's brakes had been applied at all. There were, however, tire marks of approximately fourteen feet in length left by the defendant's vehicle.

The driver of the defendant's truck stated that there were no other cars, no machinery, nor any other circumstances which might have diverted his attention from the intersection.

On the above facts, the trial court found for the defendant and dismissed the plaintiff's complaint. The court found that the driver of the defendant's vehicle was under no obligation to sense danger until the Boeing vehicle had reached a point on highway No. 16 after which it could not brake to a stop before entering the intersection. The court found that, at the speed of travel of the Boeing vehicle, it could have stopped if its brakes had been applied approximately 128 feet from the intersection. The court further found that when the Boeing vehicle had reached that point, the defendant's vehicle was at a point on the highway where it could not have stopped in time to avoid the collision. The court further found that the driver of the defendant's vehicle was not under a duty to constantly look for aproaching traffic from the left; that the driver did not, in fact, observe the Boeing vehicle because his vision was obstructed by either the lefthand exterior rear-view mirror or the left corner post of the windshield.

The court also found that the defendant's driver is not held to the duty of the most careful driver but to the duty of a reasonably prudent driver, and that there is no evidence that such driver acted unreasonably; that the defendant's driver had a right to assume that the driver of the Boeing vehicle would respect his right of way, until he became aware that the plaintiff's driver was not going to do so; that the negligence of the driver of the plaintiff's vehicle was the sole, proximate cause of the collision; and that there was no actual negligence on the part of the driver of the defendant's truck.

On appeal from a judgment in an action tried without a jury, where the appellant demands a trial de novo, the appellate court tries the entire case anew, giving appreciable weight to the findings of the trial court. Braaten v. Grabinski, 77 N.D. 422, 43 N.W.2d 381; Gust v. Wilson,...