Kist v. Kist

• Decision Date: 25 February 1932
• Docket Number: 5952
• Court: North Dakota Supreme Court

243 N.W. 820

62 N.D. 408

JACOB KIST, Respondent, v. FRED KIST, Appellant

No. 5952

Supreme Court of North Dakota

February 25, 1932

On Rehearing August 2, 1932, Reported at 62 N.D. 408 at 417.

Appeal from the District Court of Morton County, Berry, J.

A new trial is ordered.

Conmy Young & Conmy, for appellant.

A guest entering an automobile takes it and the driver as they are but owner is liable for an injury resulting from failure to use ordinary care to operate the car so that no new danger to the guest is created or failure to disclose a known defect. Dickerson v. Connecticut Co. 118 A. 519; Olson v. Hermansen (Wis.) 220 N.W. 203; Cleary v Eckart, 191 Wis. 114, 51 A.L.R. 576, 210 N.W. 267; Marple v. Haddad, 61 A.L.R. 1252; Munson v Rupker, 148 N.E. 174; New York Indem. Co. v. Ewen, 298 S.W. 183; Huddy, Auto. 802; Berry, Auto. 692; Eddy v. Wells, 59 N.D. 663, 231 N.W. 785; U.S.R. & Electric Co. v. Riley (Md.) 71 A. 970; Miner v. Connecticut River R. Co. (Mass.) 26 N.E. 994; Indiana Gas Co. v. O'Brien (Ind.) 65 N.E. 918; Drown v. Telephone Co. (Vt.) 66 A. 801.

Where it appears that there were two or more possible causes of the injury, only one of which is chargeable to defendant's negligence, the burden is upon the plaintiff to make it appear that it was more probable that the injury resulted from the cause for which the defendant was responsible. Meehan v. Great Northern R. Co. 13 N.D. 433, 101 N.W. 183; Balding v. Andrews & Gage, 12 N.D. 267, 96 N.W. 305; Cameron v. G.N.R. Co. 8 N.D. 124, 77 N.W. 1016; Whitney v. Clifford, 57 Wis. 156, 14 N.W. 927; Shearm. & Redf. Negligence, §§ 57, 58; Wason v. West (Me.) 3 A. 911; Black v. Fair Asso. 38 N.D. 105, 164 N.W. 297; Garraghty v. Hartstein, 26 N.D. 148, 143 N.W. 390; Scherer v. Schlaberg, 18 N.D. 421, 122 N.W. 1000; Smith v. N.P.R. Co. 3 N.D. 555, 58 N.W. 345.

It is the province of the jury to determine the ultimate fact whether conduct was careless, reckless, or negligent, and this right may not be encroached upon by witnesses. Dolan v. O'Rourke, 56 N.D. 421, 217 N.W. 666; American Soda Fountain Co. v. Hogue, 17 N.D. 375, 116 N.W. 339; Halvorson v. Zimmerman, 56 N.D. 607, 218 N.W. 862.

Where one knows that a machine is defective and can appreciate the danger incident to its use, he assumes the risk of injury when he voluntarily continues to use it. Everetts v. N.P.R. Co. 50 N.D. 894, 198 N.W. 685; McGregor v. G.N.R. Co. 31 N.D. 471, 154 N.W. 261; N.P.R. Co. v. Herbert, 116 U.S. 642; 3 Dak. 38.

Kelsch & Higgins, for respondent.

Where a motion for a directed verdict is made, the appellate court will consider only the grounds urged in the trial court, and appellant will not be permitted to change them or add others in the appellate court. Erickson v. Wiper, 33 N.D. 225, 157 N.W. 592.

When the driver creates the emergency, he cannot avoid liability for an injury on the ground that his acts were done in the stress of emergency. Bolton v. Wells, 58 N.D. 286, 225 N.W. 794.

The question of negligence is a question of fact for the jury. Martin v. Parkins, 55 N.D. 339, 213 N.W. 574; Engen v. Skeels, 60 N.D. 652, 236 N.W. 240; Newton v. Gretter, 60 N.D. 635, 236 N.W. 254.

A specific objection is necessary to preserve and present a record showing error, and unless timely objection is made it is waived. Daniels v. Daniels, 35 N.D. 6; 3 C.J. 742 and 749.

Operating an automobile at a rate of speed in excess of the legal limit does not constitute contributory negligence or bar a recovery of damages as a matter of law without proof that the violation of the statute in exceeding the legal speed limit was the proximate cause of or contributed directly to the injuries sustained. Sheffield v. Stone, O.W. Co. 49 N.D. 142, 190 N.W. 315.

Burke, J. Christianson, Ch. J., and Nuessle and Burr, JJ., concur. Birdzell, J., dissents.

OPINION

BURKE

This is an appeal from a judgment in a personal injury action in which Jacob Kist is plaintiff and his brother, Fred Kist, is the defendant.

At the close of the plaintiff's testimony the defendant moved for a dismissal of the case, first, on the ground that there was no evidence to support the complaint, and second, that the undisputed evidence showed contributory negligence on the part of plaintiff as a matter of law. The motion was overruled and the same motion made again at the close of all the testimony was overruled.

Jacob Kist, the plaintiff, lives at Linton, North Dakota, and his brother, the defendant, lives at Mandan, North Dakota. On or about the 12th day of February, 1930, the defendant called the plaintiff by phone and asked him to come to Mandan. He told the plaintiff that a Mr. Hausauer and his daughter, from Jamestown, were visiting him at Mandan; that he was going to drive them to their home in Jamestown, North Dakota, and he wanted Jacob to come to Mandan and go with him on the trip. Jacob refused to come, giving as a reason, that he could not drive his car as there was too much snow on the road. On the 13th day of February, Fred called Jacob again and asked him to come from Linton to McKenzie on the train and meet the party at that place en route to Jamestown. Jacob came to McKenzie on the train, joined the party at that place, Jacob riding in the back seat with Mr. Hausauer, Fred and the woman riding in the front seat of Fred's car. Before leaving McKenzie, Fred told Jacob that he wanted him (Jacob) to see and become acquainted with the woman, as he intended to marry her and subsequently he did marry her.

When they arrived at Sterling the roads were so blocked with snow that Jacob wanted to turn back and send Mr. Hausauer and daughter on to Jamestown by train, but Fred insisted on going through with the car. There was a great deal of snow all the way to Steele. After leaving Steele there was no snow on the road between that point and Jamestown and according to the testimony they drove about forty to fifty miles an hour. Both Fred and Jacob had driven cars for many years and Fred had the reputation of being a fast, careless driver, and this reputation was known to Jacob. Sometime prior to the accident, the evidence does not show just when, Fred had an accident in which his car upset and his wife was killed, the circumstances and the details of which were known to the plaintiff. Fred was familiar with the road. He had been over it just a few days before, when he took Hausauer and his daughter from Jamestown to Mandan. He knew that about a half or three quarters of a mile west of Jamestown there is a long curve in the road and he testified: "As I approached this turn I was driving about forty or forty-five miles per hour, something like forty or fifty miles per hour. Hausauer said slow down a little or you will go past Jamestown. I was a little back of the curve at that time. I looked to see where I was and then turned my head to the front. I was then too far along to turn. The turn was plenty wide enough. I had passed the turn too far before I turned in. The fact is I made a very sharp turn. I busted the right front wheel or the tire busted or something. Anyway, she slew over into the ditch. The front wheel broke and the car skidded up against the bank." As witness for the defense he stated: "I wanted my brother to advise me on the woman I was getting for my wife. I would be better satisfied if I had my brother with me. As I approached the corner, Hausauer said be careful or you will drive past Jamestown. I turned my head when he made this remark. I made my turn and made it too quick and the car tipped over. There was no time to put on the brakes. I cannot say when I bought the car, but it had been driven five or six thousand miles. It was in good condition. My brother and I have driven together numerous times. He has driven with me and I have driven with him. I carry a policy of insurance for five thousand dollars and I think Mr. Conmy is only nominally representing me." Fred paid a part of Jacob's hospital bill while in the hospital at Jamestown and went to see him several times while he was in the hospital. Jacob testified: "That from the time we left Steele until the accident happened (a distance of about sixty miles) he was going forty or fifty miles per hour. Anybody that drives a car knows about what speed a car goes. I did not protest as to the speed and I did not ask him at any time not to go so fast. I knew he had to turn to go into Jamestown; I had been over the road before in the night and knew there was a long curve in the road. I had driven with Fred before and knew he had had an accident while driving his automobile, knew that he had the reputation of being a careless driver. He was driving as usual on this particular drive. I could not say as to the speed, but he was going fast. I knew Fred had a similar accident before, in which his former wife was killed. I knew he was driving forty or fifty miles when he approached the curve. I knew before the accident that Fred had the reputation of being a careless driver. It was still daylight and we could see a considerable distance. Before we made the turn Hausauer said to Fred, do not go by Jamestown. The turn that Fred made was a sharp turn. He was going very fast and as he started to make the turn the car started to slide." It is admitted that there are markers on the road showing the curve, but none of the occupants of the car saw them. They all say they were going very fast, but none of them looked at the speedometer.

It is the contention of the appellant that the court erred in overruling the defendant's objection to the following question:

Q. I will ask you whether or not in your judgment driving a Reo sedan on a gravelled highway, such as Highway No. 10, on a straight away road, at the rate of forty to fifty miles an hour, is a safe or unsafe rate of...