Knoepfle v. Suko

• Decision Date: 02 March 1961
• Docket Number: No. 7863,7863
• Citation: 108 N.W.2d 456
• Parties: Ben KNOEPFLE, Plaintiff and Respondent, v. Edwin SUKO, Executor of the Last Will of Reinhold Suko, deceased, Defendant and Appellant.
• Court: North Dakota Supreme Court

Page 456

108 N.W.2d 456

Ben KNOEPFLE, Plaintiff and Respondent, v. Edwin SUKO, Executor of the Last Will of Reinhold Suko deceased, Defendant and Appellant.

No. 7863.

Supreme Court of North Dakota.

March 2, 1961.

Rehearing Denied April 21, 1961.

Syllabus by the Court

1. Questions of negligence and contributory negligence are questions for the jury. It is only where the evidence is such that reasonable men can reach but one conclusion therefrom that they become questions of law for the court.

2. It is for the jury and not the appellate court to determine the credibility of witnesses.

3. Section 31-01-03, NDCC, which prohibits a party to an action against the estate of a deceased person from testifying 'as to any transaction whatever with, or statement by, the testator or intestate' is an exception to the statute removing the general disqualification of witnesses by interest and should be strictly construed so as not to extend the exception beyond the ordinary and literal meaning of its language.

4. The word 'transaction' as used in Section 31-01-03, NDCC implies reciprocal actions or statements by the parties engaged in the transaction.

5. Where two strangers, each driving his own automobile, each acting independently of the other, unwillingly and fortuitously come in contact with each other upon a public highway, the incident does not constitute a transaction between the parties within the meaning of Section 31-01-03, NDCC.

6. Testimony of a driver of an automobile who survived a collision between his automobile and another, as to his independent observations of the speed and position of the two automobiles prior to the collision, does not constitute testimony as to a transaction with the driver of the other automobile, within the meaning of Section 31-01-03, NDCC.

7. Where a party objects to the admission of testimony and the testimony is admitted over his objection, such party does not waive the objection by cross-examining the witness as to such testimony.

8. The right to cross-examine is absolute and its denial with respect to material issues is prejudicial error.

9. Speed of an automobile is not a matter of exclusive expert knowledge, but any person of ordinary intelligence with reasonable experience in driving and in noting the speed of automobiles is competent to give testimony thereon.

10. Where a witness has some substantial opportunity to observe the speed of a vehicle, the degree of opportunity and the extent of his observation are not matters which affect his competency as a witness but go only to the weight to be accorded to his testimony.

11. Evidence of general competency or incompetency is not admissible upon the issue of negligence.

12. Where the evidence in a case is in direct and substantial conflict as to the existence of a material fact, it is error for the trial judge to give an instruction predicated upon the existence of such fact, without advising the jury that they must find, from their consideration of the evidence, the fact to which the instruction is to be applied.

Duffy & Haugland, Devils Lake, for defendant and appellant.

Hjellum, Weiss, Nerison & Ottmar, Jamestown, for plaintiff and respondent.

BURKE, Judge.

This is a suit for damages for injuries received by the plaintiff in a collision between an automobile driven by him and an automobile driven by Reinhold Suko deceased. Trial of the action resulted in a verdict and judgment in favor of the plaintiff in the sum of $12,530.

Defendant made a motion for a new trial which was denied and he has appealed both from the order of denial and from judgment.

The grounds urged as a basis for a new trial were:

1. That the evidence is insufficient to sustain the verdict and judgment.

2. Errors of law occurring upon the trial of the case.

3. Irregularity in the proceedings by counsel for the adverse party.

4. Newly discovered evidence.

We shall first direct our attention to the specification that the evidence is insufficient. The collision occurred on Highway 10 just at the outskirts of the City of Medina. Leaving Medina for the east, Highway 10 proceeds eastward along the main street of the city. At the eastern edge of the city it curves to the right and after proceeding in a southerly direction for about a quarter of a mile it curves to the left and continues in an easterly direction. At the southern end of the curve to the east, the highway is intersected by a gravel road known as the School House Road. This road enters the highway from the west in a straight line with the course of Highway 10 to the east. The collision took place in the arc of the curve immediately north and west of the intersection of Highway 10 and the School House Road.

According to plaintiff's testimony, he left Medina on Highway 10, intending to drive to Jamestown. He proceeded east to the edge of the city, negotiated the first curve to the south and was about to enter the curve to the east when he saw the car driven by Reinhold Suko, traveling at a speed of 55 to 60 miles an hour, about to enter the curve from the east. When the Suko car was about 200 feet away he noticed that it was astride the yellow line on the highway which separates the lanes for eastbound and westbound traffic. As the cars approached each other the Suko car encroached further and further into plaintiff's driving lane. At some point before the collision, plaintiff's recollection failed and he did not testify as to the extent of the maximum encroachment of the Suko car into his traffic lane. He did not testify as to any steps taken by him to avoid the collision. George Fisher who was a passenger in the Knoepfle car testified that he first saw the Suko car when it was about 100 feet distant. At that time the Suko car was in the middle of the road. He testified: 'the yellow line was right in the middle of his car as he was coming towards us * * * it just came right on and hit us head on.' Mr. Fisher did not testify as to any action on the part of Knoepfle to avoid the collision. Mr. Suko was killed in the collision and there were no other eye witnesses to the accident. At the place where the collision occurred the paved portion of the highway was 28 feet wide with a graveled shoulder seven feet wide. The yellow line dividing the traffic lanes on the highway had faded but was still distinct enough to be seen. At its maximum it was 11.9 feet in from the outside edge of the westbound lane of the pavement and at places was as close as 11 feet to that edge. The eastbound lane of the pavement was from 16 to 17 feet in width.

After the collision the Suko car came to rest in the westbound traffic lane, with its right front wheel 5 ft. 2 in. from the north edge of the paving and its right rear wheel 5 ft. 10 in. from that edge. The Knoepfle car was standing in the eastbound lane, headed north, perpendicularly to the line of traffic. Its right front wheel was 3 ft. 6 in. southwest of the left front wheel of the Suko car. There was a gouge in the pavement, opposite the rear of the Suko car and 3 ft. 8 in south of the yellow line. From this gouge to the left front of the Suko car were lighter broken lines scratched in the pavement. The left front of the Suko car was resting upon a broken spring mechanism or the frame of the car. There was also testimony that there were some tracks on the north lane of the pavement leading to the left rear wheel of the Suko car.

Upon this evidence it is appellant's contention, first: that the physical facts demonstrate conclusively that plaintiff's testimony that the collision took place in the eastbound lane cannot be true and that therefore there is no adequate proof of negligence on the part of Reinhold Suko, and second: that if the evidence permits an inference of negligence on the part of Reinhold Suko, it also compels a conclusion of contributory negligence on the part of the plaintiff.

Questions of negligence and contributory negligence are questions for the jury. It is only where the evidence is such that reasonable men can reach but one conclusion therefrom that they become questions of law for the court. Satterland v. Fieber, N.D., 91 N.W.2d 623; Goulet v. O'Keeffe, N.D., 83 N.W.2d 889; Schweitzer v. Anderson, N.D., 83 N.W.2d 416; Austinson v. Kilpatrick, N.D., 105 N.W.2d 258.

Appellant advances several arguments to support his position. He says that the location of debris between the two cars and mud under the Suko car indicates that the cars stopped at the point of impact. He says that the track in the north lane of the highway leading to left rear wheel of the Suko car and the absence of skid marks to indicate a spinning motion of the Knoepfle car demonstrate that the collision could not have happened in the south lane of the highway. He also says that the fact that the damage to the Knoepfle car extended almost across the entire front end while that to the Suko car was confined to the left front end shows that the cars must have collided at an angle and not head on.

The respondent answers that the gouge mark in the pavement and the scratches leading to the left front of the Suko car and the location of some debris to the east of two cars indicate that the gouge mark shows the point of impact. He suggests that Suko might have discovered that he was in the wrong lane and had headed back to his proper lane just before the collision. This theory is supported by the fact that the glass from the windshield of the Suko car was to the northwest of the car and not directly in front of it. It also explains the asymetrical damage to the cars. In view of the conflicting inferences which this evidence appears to allow and the lack of certainty as to the responsibility of the cars involved in this collision for all the marks on the pavement, we cannot say that they establish any facts with sufficient certainty to invalidate the jury's finding as to the credibility of Knoepfle and his witness, Fisher. It is for the jury and not the...