McKechnie v. O'Neil

• Decision Date: 25 April 1977
• Docket Number: No. 9295,9295
• Citation: 252 N.W.2d 875
• Parties: Richard A. McKECHNIE, Plaintiff-Appellee, v. Leonard O'NEIL, Defendant-Appellant. Civ.
• Court: North Dakota Supreme Court

Page 875

252 N.W.2d 875

Richard A. McKECHNIE, Plaintiff-Appellee, v. Leonard O'NEIL, Defendant-Appellant.

Civ. No. 9295.

Supreme Court of North Dakota.

April 25, 1977.

Syllabus by the Court

1. Under former law, contributory negligence was an affirmative defense and the burden of proof rested on the party raising the defense.

2. Unless the evidence is such that reasonable minds can draw but one conclusion therefrom, negligence, whether contributory or primary, is a question of fact and the trial court's findings will not be set aside on appeal unless clearly erroneous.

3. Findings of fact made by a trial court in an action tried upon the facts without a jury will not be set aside unless clearly erroneous. Rule 52(a), N.D.R.Civ.P.

4. Where a trial court's findings are ambiguous, a party who asserts that his interests may be adversely affected thereby may move, pursuant to Rule 52(b), N.D.R.Civ.P., to amend findings of fact so as to either clarify or correct such ambiguity, and, if it is apparent that such clarification or correction might affect the trial court's judgment, such party should move, pursuant to Rule 59(j), N.D.R.Civ.P., to alter or amend the judgment so that the trial court may have an opportunity to clarify or correct its findings and to determine what, if any, effect such clarification or correction would have on its judgment.

McIntee & Whisenand, Williston, for defendant and appellant; argued by Frederick E. Whisenand, Jr., Williston.

Bjella & Jestrab, Williston, for plaintiff and appellee; argued by Dwight C. Eiken, Williston.

PAULSON, Judge.

This is an appeal from the judgment of the county court of increased jurisdiction of Williams County dated August 30, 1976, awarding recovery for damages sustained by the plaintiff, Richard A. McKechnie, in the amount of $664.80, together with interest and statutory costs and disbursements, and dismissing the counterclaim of the defendant, Leonard O'Neil.

Mr. McKechnie commenced the instant action against Mr. O'Neil, following an automobile accident which occurred at approximately one o'clock p. m. on January 17, 1971, in which the vehicles owned by Mr. McKechnie and Mr. O'Neil were damaged. Prior to the accident, Mr. O'Neil had been driving his vehicle, a 1968 Dodge 2-door hardtop, in a northerly direction from Williston on U.S. 2 and 85, a divided four-lane highway. Mr. O'Neil was accompanied by his wife, who was a passenger sitting in the middle of the front seat of the O'Neil vehicle; his brother, who was sitting on the right side of the front seat; and his two minor children, who were sitting in the back seat. It was a clear, sunny day and U.S. Highway 2 and 85 was dry and free of ice.

Mr. O'Neil was driving at approximately 55 miles per hour and as he drove past the Westland Truck Stop, located on the east side of U.S. Highway 2 and 85, he noticed the McKechnie vehicle, a 1969 Ford convertible, proceeding north on the frontage road parallel with and on the east side of U.S. Highway 2 and 85. Mr. O'Neil then proceeded a little over three blocks (approximately 950 feet) further north, where he executed a righthand turn onto an off-ramp located at the intersection of 34th Street and U.S. Highway 2 and 85. Such off-ramp is located at an approximate right angle to the frontage road and U.S. Highway 2 and 85, and has a length of approximately two car lengths. The off-ramp is downhill from U.S. Highway 2 and 85 and was icy. Mr. O'Neil then proceeded in an easterly direction through the intersection of 34th Street and the frontage road without first determining the current location of Mr. McKechnie's vehicle which had been proceeding north at approximately 25 miles per hour during the time that Mr. O'Neil had been slowing down for his righthand turn. Mr. O'Neil's vehicle was approximately three-fourths of the way through the intersection when Mr. McKechnie's vehicle struck the right rear fender of the O'Neil vehicle, causing the O'Neil vehicle to spin around and hit a stop sign located at the northeast corner of the intersection. There were no traffic control signs at the intersection controlling the operation of the parties' vehicles. It is conceded that Mr. McKechnie had the directional right of way.

Mr. McKechnie testified that he failed to look to his left until just before entering the intersection. He also testified that he had not slowed down for the intersection. Mr. McKechnie did not see Mr. O'Neil's vehicle until it was entering the intersection, too late to avoid a collision.

Mr. O'Neil asserts that even though Mr. McKechnie was favored with the directional right of way, his conduct in the operation of his motor vehicle constituted contributory negligence and was a proximate cause of the damages he sustained. It is noted that in the instant case the accident occurred prior to the adoption of the comparative negligence statute in North Dakota by our Legislature in 1973 (§ 9-10-07, N.D.C.C.), and, consequently, the rule of contributory negligence is applicable to the instant case. Under former law, contributory negligence was an affirmative defense and the burden of proof rested on the party raising the defense....