Kuntz v. Stelmachuk, 8228
| Decision Date | 31 August 1965 |
| Docket Number | No. 8228,8228 |
| Citation | 136 N.W.2d 810 |
| Parties | Elizabeth KUNTZ, Plaintiff and Respondent, v. Matt STELMACHUK, Joseph Skalsky, d/b/a Queen City Cab Co., and John Perzinski, Defendants and Appellants. |
| Court | North Dakota Supreme Court |
Syllabus by the Court
1. Where evidence is in conflict, and where reasonable men might come to different conclusions therefrom, it is proper to submit the question of negligence to the jury.
2. Whether a driver's conduct, on approaching an intersection protected by electric signals, measures up to the standard of care required under the circumstances, must be determined by facts of the case present at the time of such conduct. While the presence of traffic signals at the intersection lessens the degree of care required of a motorist who proceeds on a proper light, the existence of such light does not do away with the necessity of some care and caution on the part of such motorist. He must use care commensurate with the danger that continues to exist.
3. Where an intersection is controlled by electric traffic lights, the question of which driver has the right of way depends primarily upon which one was operating in conformity with such lights. However, both drivers, under such circumstances, must be on the lookout and have their vehicles under such control as to enable them to promptly obey a change in signals.
4. The fact that a driver, on approaching an intersection, finds that he has the right of way does not give to such driver the right to proceed without due care by failing to keep a lookout for others who may operate their vehicles on the highway in a negligent manner. While he has the right to assume that others will honor his right of way, he cannot, because of that fact, drive without due care.
5. In an action for injuries received when the taxi in which she was riding collided with another car in an intersection, the evidence sustained finding by the jury that the collision resulted from the negligence of drivers of both vehicles involved.
6. An instruction that the unexplained failure of a party to produce a material witness, or evidence, available to him which he would naturally be expected to produce, permits an inference that the testimony of such witness, if produced, would be unfavorable to him, is a correct instruction where one of the parties fails to call his wife as a witness although she was in the front seat of his car at the time of the accident. The failure of a party to call as a witness a person related to him who has some knowledge of material facts warrants such inference.
7. If a party deliberately chooses, as part of his trial strategy, not to call a witness available to him, after having been advised that the court will instruct on his failure to produce such witness, he cannot thereafter predicate error upon a denial of a motion to reopen his case.
8. The granting or denial of a motion to reopen the case for introduction of further evidence, after both sides have rested and arguments to the jury have begun, is within the sound discretion of the trial court. The court's decision on such motion will not be reversed on appeal unless the appellate court is satisfied that such discretion was abused.
9. For breach of an obligation not arising from contract, the measure of damages, unless otherwise expressly provided by law, is such an amount as will compensate for the detriment proximately caused thereby, whether or not it could have been anticipated. Sec. 32-03-20, N.D.C.C.
10. Where evidence discloses that a person suffered from a condition unrelated to the accident, if the negligence of the defendants was the proximate cause of aggravating such pre-existing condition, the defendants will be liable for all detriment proximately caused by their negligence, including the aggravation of such pre-existing condition.
11. The determination of damages for personal injuries, which includes pain and suffering, is never susceptible of exact calculation. The fixing of such damages must, to a large degree, depend on the common knowledge, good sense, and practical judgment of the jury.
12. Instructions to the jury must be considered as a whole. If, when considered together, they fairly state the law applicable to the evidence, error cannot be predicated on the giving thereof.
13. A common carrier of passengers for hire must exercise utmost care and diligence for their safe carriage.
14. The instruction given to the jury on the degree of care required of a common carrier is considered, and such instruction held proper.
15. The term 'utmost care and diligence' held to mean every care which is practicable by a common carrier in the business of carrying passengers.
16. An instruction which uses the expression 'utmost care,' meaning 'the highest degree of care, or all the care and diligence possible in the nature of the case,' instead of using the words 'all the care and diligence reasonable,' did not prejudice the rights of the defendants in view of all of the instructions given. This is especially true where the evidence shows that the driver of the taxi did not exercise reasonable care and failed to see the approach of another vehicle into the intersection until it was within twenty feet, although such vehicle could have been seen at least 150 feet from the intersection.
17. The question of whether a party in a negligence case was covered by indemnity insurance is not material to any issue in the case.
18. In action for injuries against several defendants, one of whom was an operator of a taxi, evidence that the owner of such taxi was not protected by liability insurance because insurer was in receivership held properly excluded.
Howard A. Freed, Dickinson, for plaintiff and respondent.
Mackoff, Kellogg, Muggli & Kirby, Dickinson, for defendant and appellant Matt Stelmachuk.
Greenwood & Swanson, Dickinson, at trial, and Floyd B. Sperry, Bismarck, on appeal, for defendant and appellant Joseph Skalsky.
George T. Dynes, Dickinson, at trial, and William R. Mills, Bismarck, on appeal, for defendant and appellant John Perzinski.
This is an action for personal injuries suffered in a motor vehicle accident. The plaintiff was a passenger in a taxi owned by the defendant Skalsky while it was being driven in a southerly direction in the city of Dickinson by the defendant Perzinski, his employee. While the plaintiff was such passenger, the taxi collided with an automobile driven in a westerly direction by the defendant Stelmachuk. As a result of the collision, the plaintiff suffered severe personal injuries.
Traffic at the intersection in question was controlled by automatic traffic signals, and there is a conflict of evidence as to which of the vehicles had the green light. The driver of the taxi, the defendant Perzinski, contends that he had the green light for the last 140 feet going into the intersection. His testimony is corroborated to some extent by the plaintiff, who testified that the taxi in which she was riding as a passenger had the green light as it entered the intersection. The defendant Stelmachuk, on the other hand, contends that he had the right of way and that as he approached the intersection and entered it the green light was in his favor. He further contends that, if it did change, it changed after he had entered such intersection.
The record discloses that the intersection in which the collision occurred was an open intersection and that both drivers had a clear view of the area from which the other was approaching for a distance of at least 150 feet, and that each of the drivers could have seen the other for that length of space before reaching the intersection. Both drivers claim to have been traveling at approximately twenty miles an hour, or approximately twenty-nine feet a second; and each of the drivers admits that he did not see the other until he was within twenty feet of such other vehicle. The defendant Stelmachuk, on discovering the defendant Perzinski's taxi in the intersection, stepped on the accelerator in an attempt to avoid the collision. Perzinski, however, on discovering the defendant Stelmachuk about twenty feet from his vehicle, stepped on his brakes. Then the collision occurred.
The plaintiff commenced an action against the defendant Skalsky as owner of the taxi line and against the operators of both vehicles involved. Each of the defendants filed a separate answer. The defendant Stelmachuk filed a cross-complaint against the defendants Skalsky and Perzinski for the damages to his automobile as a result of the collision, while the defendant Skalsky filed a cross-complaint against the defendant Stelmachuk for the damages to his taxi.
The case was tried to a jury, which returned a verdict against all three of the defendants for a total of $21,997.57. This verdict included general damages in the sum of $15,675; special damages for hospital and medical care in the sum of $5,101.76; and damages for travel and other miscellaneous expenses incurred because of such injuries in the sum of $1,220.81.
After entry of judgment on the verdict, each of the defendants made a separate motion for judgment notwithstanding the verdict or, in the alternative, for a new trial. Such motions were based on claimed failure of proof of the respective defendants' negligence; on insufficiency of the evidence to support the jury's verdict as to damages; and on alleged errors at law occurring during the trial. The court made its order denying the motions for judgment notwithstanding the verdict, but granting a new trial on the issue of damages only unless the plaintiff, within thirty days, should agree to a reduction of the verdict in the sum of $4,000. The court's order further provided that if the plaintiff did agree to such reduction, the motions for new trial were denied.
The plaintiff filed written consent to such reduction of the verdict, and each of the defendants thereupon appealed to this court from the...
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