Logan v. Schjeldahl

• Decision Date: 27 September 1935
• Docket Number: No. 6352.,6352.
• Citation: 66 N.D. 152,262 N.W. 463
• Parties: LOGAN v. SCHJELDAHL.
• Court: North Dakota Supreme Court

66 N.D. 152

262 N.W. 463

LOGAN

v.SCHJELDAHL.

No. 6352.

Supreme Court of North Dakota.

Aug. 15, 1935.

Rehearing Denied Sept. 27, 1935.

On Petition for Rehearing.

Syllabus by the Court.

1. Questions of negligence and contributory negligence are both questions of fact unless the evidence is such that only one conclusion can be reasonably deduced therefrom.

2. “In order to constitute contributory negligence as a matter of law, the facts and circumstances must be such that no other inference can fairly and reasonably be drawn therefrom.” Haugo v. Great Northern Railway Company, 27 N. D. 268, 145 N. W. 1053.

3. One who drives an automobile at an unlawful rate of speed thereby forfeits the right of way which he would otherwise have over the driver of a vehicle entering a public highway from a private road.

Appeal from District Court, Stutsman County; R. G. McFarland, Judge.

Suit by Charles Logan against A. O. Schjeldahl. From a judgment, defendant appeals.

Affirmed.

Charles J. Vogel and Richardson, Thorp & Wattam, all of Fargo, for appellant.

Knauf & Knauf, of Jamestown, for respondent.

MORRIS, Judge.

This suit is the outcome of an automobile accident which occurred between 9 and 10 o'clock a. m. of August 27, 1933, on state highway No. 9, about five miles south of the town of Oriska in this state. On the morning in question, the plaintiff and two other young men riding in the plaintiff's Chevrolet coupé started from the farmyard of Fred Wagner, which is located on the west side of and adjacent to the highway. There is a grove of trees between the highway and the farmyard. The plaintiff drove along a private road or driveway which runs in a northerly direction along the west side of the grove for about 70 feet, then turns east and enters the highway. The highway runs north and south. As the plaintiff approached it he stopped at the east edge of the trees, which is about 10 or 12 feet from the highway. The plaintiff looked to the right and left and saw no car approaching. As to his vision to the south or right, the plaintiff testified, “From the car you could see down the road about 250 or 300 feet. You could see the east side of the road about 300 feet.” He started his automobile and drove at about five miles per hour along a curve 20 or 25 feet in a northeasterly direction and entered the highway. He then looked to the south a second time. The point from where he looked south the second time was 7 or 8 feet in from the west or left edge of the highway. He then saw the defendant's car approaching at a distance of 200 to 250 feet. The plaintiff did not continue across to the east side of the highway, but turned to the left and drove about 8 or 10 feet farther and stopped partly on the driveway and partly on the highway. The defendant's car came down the center of the highway until it was about 9 feet from the plaintiff's car and then swerved over to the left 15 or 18 inches and struck the plaintiff's car on the right rear fender. The point of collision was several feet west or to the left of the center of the highway. The plaintiff's car was tipped over on its side and pushed along the roadway. The plaintiff's left arm was caught between the side of the car and the roadbed and severely injured.

The highway at the point where the accident occurred consists of a graveled surface 24 feet wide with an earth shoulder 1 foot wide on each side of the gravel. From the point where the driveway enters the highway, the road can be seen for a distance of about 400 feet to the south, where it passes over the crest of a small hill.

[1] The defendant, as he approached the place where the accident occurred, was driving in excess of 50 miles per hour. Such speed is prima facie unlawful. Chapter 158, Sess. Laws N. D. 1931. Most of the testimony indicates that he was traveling between 60 and 70 miles per hour. He states that he first saw the plaintiff's automobile when he was 70 to 100 feet from it. There is ample evidence in the record from which the jury might find that the defendant was negligent.

[2][3] The defendant contends that even though he was negligent, that the plaintiff is guilty of contributory negligence as a matter of law and cannot recover. He contends that the plaintiff was negligent in driving 20 to 25 feet from the point where he first looked until he was 7 or 8 feet onto the highway without looking again. The questions of negligence of the defendant and the contributory negligence of the plaintiff were submitted to the jury. These are both questions of fact, unless the evidence is such that only one conclusion can be reasonably deduced therefrom. State v. Yellow Cab Company, 62 N. D. 733, 245 N. W. 382. The verdict must stand unless it appears from the record that the plaintiff was guilty of contributory negligence as a matter of law. “In order to constitute contributory negligence as a matter of law, the facts and circumstances must be such that no other inference can fairly and reasonably be drawn therefrom.” Haugo v. Great Northern Railway Company, 27 N. D. 268, 145 N. W. 1053. See, also, Dougherty v. Davis, 48 N. D. 883, 187 N. W. 616;Billingsley v. McCormick Transfer Company, 58 N. D. 913, 228 N. W. 424.

The law pertaining to the right of way of vehicles is found in chapter 162, Sess. Laws N. D. 1927, from which we quote the paragraphs applicable to this case.

“§ 18. Right of Way.) (a) When two vehicles approach or enter an intersection at approximately the same time, the driver of the vehicle on the left shall yield the right of way to the vehicle on the right except as otherwise provided in section 19. The driver of any vehicle traveling at an unlawful speed shall forfeit any right of way which he might otherwise have hereunder.”

“§ 19. Exceptions to the Right of Way Rule.) (a) The driver of a vehicle entering a public highway from a private road or drive shall yield the right of way to all vehicles approaching on such public highway.”

In order to enjoy the right of way provided by these sections, the driver of a motor vehicle must operate it at such speed and in such manner as is contemplated by law.

“The right of way establishes precedence only when rights might otherwise be evenly balanced. It is the duty of the driver on the main thoroughfare to observe all applicable laws and ordinances regulating speed, and if he is driving at an excessive and unlawful rate of speed, so that the other could not reasonably estimate the speed or make reasonable calculations of the time of his arrival at the intersection, or, if such driver on the main thoroughfare is so far distant from the...