Killmer v. Duchscherer

• Decision Date: 26 October 1955
• Docket Number: No. 7471,7471
• Citation: 72 N.W.2d 650
• Parties: Anna KILLMER, Plaintiff and Respondent, v. Bruno DUCHSCHERER, Defendant and Appellant.
• Court: North Dakota Supreme Court

Page 650

72 N.W.2d 650

Anna KILLMER, Plaintiff and Respondent, v. Bruno DUCHSCHERER, Defendant and Appellant.

No. 7471.

Supreme Court of North Dakota.

Oct. 26, 1955.

Syllabus by the Court.

1. Negligence and contributory negligence are questions of fact for the jury, and it is only when the evidence is without material conflict, and is such that reasonable men must draw the same conclusion therefrom that the question is one for the court.

2. Where the evidence is in conflict and reasonable men might draw different conclusions therefrom, this court on appeal will disturb neither the verdict of the jury based on such evidence, nor the order of the trial court denying a motion for judgment notwithstanding the verdict, or for a new trial on ground of insufficiency of the evidence.

3. A witness may be impeached on cross-examination by inquiries as to collateral facts tending to incriminate, disgrace or degrade him, and where such an inquiry is as to previous conviction it is not confined to conviction of a felony.

4. No reversal will be granted because of allowance of cross-examination on a collateral matter unless it plainly appears that it resulted in prejudice.

5. Where a witness on cross-examination is interrogated, without objection, as to a conviction of a traffic crime for the evident purpose of affecting his credibility, and the witness admits the commission thereof without naming the crime, although his answers are conclusive, it is not prejudicial error to allow him to be further cross-examined as to the nature and the statutory name of the offense and to call in rebuttal the justice of the peace before whom the conviction was had, where such cross-examination and examination merely result in cumulative evidence as to the name, penalty, and details of the crime, the jury already being possessed of knowledge of the conviction of the witness.

6. It is the duty of the trial court to fully and fairly instruct the jury on the law governing the issues involved in a case, and any party has a right to request instructions. The court may refuse requested instructions when the matter is already fully and fairly covered by the charge given, even though the requested instructions enunciate correct legal principles, and this is especially true where the requested instructions are a mere amplification or are a more detailed restatement of the law and the facts already charged, and also where the requested instructions tend to give undue prominence to particular portions of the evidence.

Heringer & McClintock, Rugby, and W. R. Spaulding, Towner, for defendant and appellant.

Waldron & Kenner, Minot, for plaintiff and respondent.

JOHNSON, Judge.

This is an action for damages resulting from an accident that occurred on the evening of August 11, 1951, at approximately 9:30 p. m. while the plaintiff was standing near or behind a stalled automobile on United States Highway Two in Pierce County, North Dakota, at a point about two and one-half miles west of the junction of Highways Two and Three. The defendant was driving east on Highway Two in a 1950 International three-quarter ton truck. He struck the plaintiff and she was seriously injured.

The plaintiff alleges that the defendant negligently and carelessly drove and managed his motor vehicle in the following respects, to wit:

1. At excessive speed;

2. Without keeping the proper lookout;

3. Failing to exercise due caution;

4. Without keeping the motor vehicle under proper control;

5. Without giving warning of approach;

that by reason of his negligence the defendant rammed, bumped and tossed the plaintiff into the air and against the stalled automobile; that his negligence was the direct and proximate cause of the injuries received by the plaintiff; that she received injuries to her head, body, arms, legs, feet and hips and was crushed, bruised, lacerated and injured 'internally and externally', and that such injuries are of a permanent and lasting nature. She requested damages, both general and special.

The defendant answered denying generally the allegations made by the plaintiff and asserted affirmatively that he drove his truck at a speed of less than 50 miles an hour, and that as he approached a point about 2 1/4 miles west of the intersection of Highways Two and Three, he noticed a car approaching from the east going west, and just as he passed this vehicle he suddenly came upon a vehicle that was stopped on Highway Two in the defendant's lane of traffic, without any lights or warning signs that were visible to the defendant whatsoever; and that as the defendant pulled out to the north in order to avoid colliding with said vehicle, he noticed several persons standing near to the rear of said parked vehicle who had obstructed the view of the taillights of said vehicle, if any taillights were burning at said time; that he felt a slight jar to his truck; that he stopped immediately and upon investigation noticed that a woman was lying on the pavement in a position thereon adjacent to the bumper of the parked car that he had just passed; that this woman was later identified as the plaintiff in this action; that at the time the accident occurred the plaintiff was standing on the pavement of Highway Two in a position to the rear and directly north of the vehicle that was parked on the highway, and that she saw or should have seen the defendant's vehicle approaching from the west; that she saw or should have seen other cars approaching from the east, just prior to the accident; that she was warned by others standing behind and adjacent to the car that was parked, not to stand on the highway and to get off the pavement, but that notwithstanding said warnings the plaintiff carelessly, negligently and recklessly continued to stand on the highway, knowing and realizing that she was in peril and her life was in danger; that she did not exercise ordinary care, caution, or prudence in the premises to avoid the accident and the resulting injuries, and that the injuries and damage sustained by her, if any, were proximately contributed to and caused by her failure to exercise ordinary care, caution and prudence.

The case was tried to a jury and resulted in a verdict in favor of the plaintiff. The defendant made a motion for judgment notwithstanding the verdict or for a new trial. Judgment was entered on the verdict. The defendant appeals from the judgment and the order denying motion for judgment notwithstanding the verdict or for a new trial.

The defendant lists seventeen alleged errors of law and asserts three reasons why the evidence is insufficient to sustain the verdict. For convenience they are grouped as follows:

1. Denial of motion for dismissal made by the defendant at the end of the plaintiff's case and again renewed after both parties had rested, and denial of a motion for a directed verdict made by the defendant after both parties had rested, based on the insufficiency of the evidence.

2. Permitting cross-examination under the statute of the defendant concerning Exhibit No. 1, a purported plat of the scene of the accident, which, however, was not in shape to be admitted in evidence and which was not admitted.

3. Recalling defendant's witness, Sheets, for further cross-examination after the defendant had rested, and examination of such witness with reference to an offense of reckless driving and permitting L. A. Koons, Police Magistrate of Rugby, North Dakota, in rebuttal, to testify concerning the conviction and sentence imposed.

4. Failure of proof as to a specific allegation in the complaint as to the location of the plaintiff on the highway at the time of the accident.

5. Failure to give five requested instructions for the defendant, and failing to give any instruction relevant to the duty of the plaintiff at the time and scene of the accident.

6. Denial of the defendant's motion for judgment notwithstanding the verdict or in the alternative for a new trial.

We will first consider the alleged insufficiency of the evidence.

The defendant asserts:

1. That the plaintiff failed to prove by fair preponderance of the evidence that the defendant was guilty of negligence; that there is no competent evidence showing excessive speed, lack of proper control of the truck, lack of keeping proper lookout, or any other wrongful act upon the part of the defendant, and no competent proof that he has violated any traffic law or been guilty of any misconduct.

2. That the plaintiff was guilty of contributory negligence as a matter of law in that she voluntarily placed herself on the main traveled highway in the night without any necessity therefor and without keeping any adequate watch for her safety and that under circumstances which necessarily contributed to and were responsible for her injuries.

3. That the evidence conclusively shows that the presence of the car in which the plaintiff was riding, together with Sheets' car upon one side of the road, with the plaintiff standing near the center of the road, and with a car coming towards the defendant, created a hazardous condition and an emergency, and that the defendant acted as a reasonable and prudent man might in such emergency, while the plaintiff had voluntarily helped to create the emergency by wholly failing to act as a reasonable and prudent person would in the light of such hazardous condition and emergency.

The defendant has abandoned the specifications of error with reference to plaintiff's Exhibit 1.

For a better understanding of the facts, we set them forth. At about 9:30 p. m. on August 11, 1951, the plaintiff, with five other persons, was riding as a passenger in the 1938 Chevrolet driven by her brother-in-law, Marvin Bjoraa, who was on his way from Minot to Rugby on Highway Two. At approximately two and one-half miles west of Rugby, Mr. Bjoraa's car was struck from behind by a car driven by John Sheets. The impact between Mr. Bjoraa's car and that of John Sheets caused Bjoraa's car to leave the...