Martin v. Parkins

• Decision Date: 21 April 1927
• Docket Number: No. 5202.,5202.
• Citation: 213 N.W. 574,55 N.D. 339
• Parties: MARTIN v. PARKINS et al.
• Court: North Dakota Supreme Court

55 N.D. 339

213 N.W. 574

MARTIN

v.PARKINS et al.

No. 5202.

Supreme Court of North Dakota.

April 21, 1927.

Syllabus by the Court.

Ordinarily, the question of negligence is a question of fact to be determined by the jury, and becomes a question of law only when reasonable men can draw but one conclusion from the evidence. Held, for reasons stated in the opinion, that whether there was negligence in driving the automobile in the instant case was a question of fact for the jury.

Whether a new trial shall be granted rests largely in the sound discretion of the trial court, and its action in granting a new trial will not be disturbed on appeal except in case of abuse of discretion; and where a new trial is granted on the ground that the evidence is insufficient to sustain the verdict or judgment, the reviewing court will consider and weigh the evidence only so far as may be necessary to determine the question whether the trial court acted within its discretion.

Appeal from District Court, Hettinger County; H. L. Berry, Judge.

Action by Mike B. Martin against Maxine Parkins and Floyd L. Parkins, as his guardian ad litem and individually, for the death of plaintiff's child. Verdict for defendants. From an order granting a new trial, defendants appeal. Affirmed.Harvey J. Miller, of New England, for appellants.

Jacobsen & Murray, of Mott, for respondent.

NUESSLE, J.

The defendants, Floyd L. Parkins and Maxine Parkins, are father and son. Maxine was 17 years old at the time of the accident hereinafter described. They lived in the village of New England. On April 3, 1925, the defendants were at the Woodmen's Hall helping to prepare for an entertainment that the Woodmen Lodge, of which they were members, was giving that evening. Some chairs were needed, so Maxine took his father's Ford truck (which he often drove), and, accompanied by three other boys, went to get the chairs. They drove south down Second avenue and turned west on Ninth street, a residence street. As they turned into Ninth street between block 27 on the north and block 24 on the south, they observed no one on the street. It was about half past 5 o'clock in the afternoon, and the sun, then low in the west, was shining brightly. The sunlight on the windshield made it difficult to see directly in front of the truck. Maxine pulled the visor of his cap down over his eyes, but was able to see only 4 or 5 feet ahead of the truck. He looked ahead as well as he could through the windshield to see if there was anything in the road. The cab on the truck was a homemade affair, and it was not possible to tip the windshield. The sides of the cab were open. Maxine drove slowly-7 or 8 miles per hour. He followed the beaten track along the middle of the street. An alley cuts blocks 27 and 24 from north to south. Lot 2 of block 27 extends along Ninth street from Second avenue to the alley. There were two buildings on lot 2. Some planks and a box were in the street close to the lot line south of the west end of this lot. When between 50 and 100 feet from the alley Maxine saw some children in the street just out from the sidewalk line on the north side. They were about where the street and alley intersect. He also saw a woman (Mrs. Bowers) and a child on the south side of the street in the alley. He drove on, and at the point of intersection of the alley with the street one of the boys shouted to him to look out and he felt a jar. He at once stopped the truck and, getting out, discovered that he had run over the infant son of the plaintiff. This child was about 2 1/2 years old. Maxine picked the baby up and carried him up the alley to his home on the north side of the block. Shortly thereafter the child died as a result of the accident. The child had been run over by the right rear wheel of the truck. The truck stopped within 3 or 4 feet after the accident. The child was dressed in a black coat and wore a red cap. According to the testimony of other witnesses, he had walked into the street from the alley to the north just a few seconds before the accident. Maxine did not see the child, nor did any of his companions. At the time of the accident he was watching the children on the north and the woman and child on the south and was driving carefully because of these children. Maxine knew there were many children in this neighborhood and that they sometimes played in the street, but he had never before seen any in this particular place.

The plaintiff brought the instant action to recover damages on account of the death of the child under the circumstances as above set out, claiming negligence on the part of the defendants. Defendants denied having been guilty of any negligence, and pleaded contributory negligence on the part of the plaintiff in permitting his child to be in the street, and various other defenses. The case was tried to a jury. The defendant had a verdict. Thereafter the plaintiff moved for a new trial upon the minutes of the court, setting forth the following grounds therefor: (1) Irregularity of the proceedings of the jury which prevented the plaintiff from having a fair trial. (2) Misconduct of the jury. (3) Insufficiency of the evidence to justify the verdict and that the verdict was against law. (4) Errors in law occurring at the trial and excepted to by the plaintiff. The court granted the motion. From the order thus entered granting a new trial the defendants perfected the instant appeal.

On this appeal the defendants contend that the trial court overstepped the bounds of his discretion in ordering the new trial, and thus invaded the province of the jury by substituting his judgment for that of the jury as to vital questions of fact. While various grounds were set up by the plaintiff in his motion for a new trial, apparently none was urged or relied upon excepting that of the insufficiency of the evidence to sustain the verdict. No showing was made by affidavit or otherwise in support of the first and second grounds urged, and no errors of law occurring at the trial were specified or assigned. The order granting the new trial recites that it is “based upon the pleadings, minutes of the court, judgment, motion of the plaintiff, and specifications of insufficiency of the evidence and facts claimed to be conclusively established, and all the records and files in the action.” The trial court in accordance with the provisions of section 7945, C. L. 1913, filed a written memorandum setting forth the grounds on which he based his ruling, and it appears therefrom that it was based upon the insufficiency and unsatisfactory nature of the evidence.

The plaintiff argues, and this seems to have been the view of the trial court also, that Maxine knew the children of the neighborhood sometimes played in the streets; that when he turned west on Ninth street and the reflection of the sun on the windshield made it impossible for him to see any distance directly ahead, due care required either that he stop the car altogether or that he lean out of the sides of the car and thus view the roadway ahead of him, and that his failure to do either or both of these things was negligence as a matter of law.

Plaintiff insists that in driving down the street as he did Parkins was to all intents and purposes a blind man, and that it cannot be gainsaid that a blind man driving a truck down such a street would be guilty of negligence. We think, however, that the comparison is not apt. When Maxine turned west into Ninth street he naturally had a view of the street through the side window of the cab. His vision was not then obscured by reason of the sun's rays on the glass. He then observed no one in the street. It is true the child must have been somewhere near the place of the accident at that time, but it seems to us that the fact that he was not then seen was not necessarily due to the negligence of the defendant. There were buildings on the lot to the north of Ninth street. Planks and a box were on the street along the line of the sidewalk, just northeast of the spot of the accident, and from the evidence the jury may well have believed that the child was not then in the street. After defendant turned west on Ninth street he drove slowly. His car was under control, for at the time of the accident he stopped it within 3 or 4 feet after feeling the bump caused by running over the child. He looked ahead as well as he could, and, while he could see only 5 feet ahead of the radiator, yet ordinarily this would be far enough ahead so as to enable him to stop the car should any reason apparent to him require it. As he proceeded along the street he saw the children to the north and also saw Mrs. Bowers and her child to the south. It was his duty, not only to look ahead, but also to keep watch on each side, as he did. Bulger v. Yamaoka, 111 Wash. 646, 191 P. 786. The child walked into the roadway from the alley just a few seconds before the accident-just when is not clear. The jury may well have found that it was after Maxine turned and started driving west. Under these circumstances it seems to us that there is good room for disagreement as to whether Maxine used due care. True, with the sun blinding his vision he was required to use greater care than would otherwise have been necessary, but whether it was negligence to proceed as he did depended upon all of the circumstances. As to this, reasonable men might differ.

[1] Ordinarily, the question of negligence is a question of fact to be determined by the jury. It becomes a question of law only when reasonable men can draw but one conclusion from the evidence. Pyke v. City of Jamestown, 15 N. D. 157, 107...