Mertz v. Weibe

• Decision Date: 24 September 1970
• Docket Number: No. 8529,8529
• Citation: 180 N.W.2d 664
• Parties: Melodee J. MERTZ, by her guardian adlitem, Alice Mertz, Plaintiff and Respondent, v. Eleanor WEIBE, Defendant and Appellant. Alice MERTZ, Plaintiff and Respondent, v. Eleanor WEIBE, Defendant and Appellant. Civ.
• Court: North Dakota Supreme Court

Page 664

180 N.W.2d 664

Melodee J. MERTZ, by her guardian adlitem, Alice Mertz, Plaintiff and Respondent, v. Eleanor WEIBE, Defendant and Appellant.

Alice MERTZ, Plaintiff and Respondent, v. Eleanor WEIBE, Defendant and Appellant.

Civ. No. 8529.

Supreme Court of North Dakota.

Sept. 24, 1970.

Rehearing Denied Nov. 10, 1970.

Syllabus by the Court

1. On appeal from an action tried by the court without a jury, whether triable to a jury or not, the supreme court will try anew the questions of fact if the appellant demands a trial anew of the entire case and will review and weigh the evidence independently of the trial court's findings, but in arriving at its decision will give to those findings appreciable weight.

2. In an action based on negligence, the plaintiff has the burden of proving that the defendant was responsible for some negligent act or omission, and that such act or omission was the proximate cause of the plaintiff's injury.

3. We agree with the trial court's findings that the appellant at the time of the accident was driving her automobile partially in the wrong lane of traffic, and that her negligence was the proximate cause of the plaintiffs' injuries.

4. The negligence of a family member owner-driver cannot be imputed to family member passengers to bar recovery by them against third tort-feasors for injuries to them.

Traynor & Traynor, Devils Lake, for appellant.

Duffy & Haugland, Devils Lake, for respondent.

KNUDSON, Judge. (On reassignment.)

These appeals arise out of a collision of two automobiles which met and collided at the top of a small hill. Separate actions were brought by two passengers in one of the automobiles against the driver and owner of the other automobile for personal injuries sustained in the accident. Although separate actions were brought, they were consolidated for the purpose of trial. A jury was waived, and after trial to the court a judgment was entered awarding damages to each plaintiff. The defendant has appealed from the judgment and demands a trial de novo in this court.

The plaintiffs, Alice Mertz and Melodee J. Mertz, are the wife and ten-year-old daughter, respectively, of Marvin Mertz, who was driving the automobile in which they were passengers when it collided with the automobile being driven by the defendant, Miss Eleanor Weibe, as the two vehicles met at the top of a small hill on a township road a few miles north and west of Hurdsfield, North Dakota. The plaintiffs seek damages for injuries sustained by each in the collision, claiming that their respective injuries were caused by the negligence of the defendant Miss Weibe. The collision occurred at about 1:30 p.m. on December 29, 1965. It was a clear day and the road was dry. The road was 21 feet 10 inches wide and was covered with a thin coat of gravel. The Mertz automobile was proceeding in a northerly direction and the Weibe automobile was proceeding in a southerly direction. Both were being driven within the speed limit. Both parties claim the other was on the wrong side of the road and failed to keep a proper lookout.

The trial court, in a lengthy memorandum opinion, considered the evidence introduced at the trial and concluded that Miss Weibe, at the time of the collision, was driving her automobile partially on the Mertz half of the road and that her negligence in so doing was a proximate cause of the plaintiffs' injuries. It awarded damages in favor of the plaintiff Alice Mertz in the amount of $26,441.00 and in favor of the plaintiff Melodee J. Mertz in the amount of $6,722.40.

From the judgment entered in accordance with the trial court's findings and order for judgment the defendant appeals and demands a trial de novo in this court.

Under the provisions of § 28--27--32, North Dakota Century Code, on appeal from an action tried by the court without a jury, whether triable by a jury or not,

The supreme court shall try anew the question of fact specified in the statement or in the entire case, if the appellant demands a retrial of the entire case, and shall finally dispose of the same whenever justice can be done without a new trial, and shall either affirm or modify the judgment or direct a new judgment to be entered in the district court. * * *

N.D.C.C. § 28--27--32.

Under the provisions of this section, on appeal from an action tried by the court without a jury, whether triable to a jury or not, the supreme court will try anew the questions of fact if the appellant demands a trial anew of the entire case and will review and weigh the evidence independently of the trial court's findings, but in arriving at its decision will give to those findings appreciable weight, especially when they are based on the testimony of witnesses who appeared in person before the trial court. Umland v. Frendberg, 63 N.W.2d 295 (N.D.1954), citing Knell v. Christman, 79 N.D. 726, 59 N.W.2d 293 (1953), and cases cited therein. See also Hillius v. Wagner, 152 N.W.2d 468 (N.D.1967), and cases cited therein.

It therefore becomes incumbent upon this court to 'review the record here presented and find facts for itself.' Donaldson v. City of Bismarck, 71 N.D. 592, 3 N.W.2d 808 (1942); Doyle v. Doyle, 52 N.D. 380, 202 N.W. 860 (1925).

The testimony of the two drivers is in direct conflict as to several important factors, particularly as to where, with reference to the center of the road, the respective automobiles were being driven immediately before the collision. We find, from an examination of the evidence, that we, as did the trial court, must rely principally on the physical evidence introduced at the trial to determine where the collision occurred.

In an action based on negligence, the plaintiff has the burden of proving that the defendant was responsible for some negligent act or omission, and that such act or omission was the proximate cause of the plaintiff's injury. Farmers Home Mut. Ins. Co. of Medelia, Minn. v. Grand Forks Implement Co., 79 N.D. 177, 55 N.W.2d 315 (1952); 38 Am.Jur., Negligence, § 285, p. 975; 65A C.J.S. Negligence §§ 208, 209, pp. 463, 478. The plaintiffs are only required to satisfy the trier of the facts by a fair preponderance of the evidence that the injuries occurred in the manner contended for in their respective claims. McKenzie v. Hanson, 143 N.W.2d 697 (N.D.1966); Farmers' Mercantile Co. v. Northern Pacific Ry. Co., 27 N.D. 302, 146 N.W. 550 (1914); 38 Am.Jur., Negligence, § 285, p. 974.

The only eyewitnesses who testified to the occurrence of the accident were Marvin Mertz, the driver of the automobile in which the plaintiffs were riding, and the defendant Miss Weibe, the driver of the other automobile.

According to the testimony of Mertz, he had driven from his farm home to his mailbox and from the mailbox a distance of about one-fourth of a mile on the township road to the point where the accident occurred. His wife and son were seated with him in the front seat, and his three daughters, including the plaintiff Melodee, were seated in the back seat. He had stopped at his rural mailbox about one-fourth of a mile south of the accident scene to take the mail from the mailbox, which was located on the west side of the road. He then drove at a speed of from thirty to thirty-five miles per hour in a northerly direction and, as he approached the crest of the hill upon which the accident occurred, he was driving on his half of the road. The road is flat and low to the beginning of the incline which ascends the hill where the accident occurred. The incline up the slope of the hill was not steep, but it was more steep than the incline approaching the hill from its other side. He did not see the Weibe automobile approaching until it was ten to twelve feet from him and he saw it was coming toward him in his lane of travel. He said the road had three well-traveled paths, the center one being used in common by vehicles going both north and south. There was a ridge of gravel from eight to ten inches high located about two feet from the east shoulder of the road, and Mertz said that he drove his vehicle with the right wheels about six to eight inches west of the gravel ridge, and that this would place the left wheels of his automobile 'maybe between nine to ten feet' from the east edge of the road. He said that his automobile extended outward about three inches beyond the outer edge of its wheels. Thus he contends he was driving on his half of the road, because the road was 21 feet 10 inches wide. Mertz said that when the Weibe automobile came over the hill in his lane of travel he did not have time to turn out to avoid it, nor to brake his vehicle, and that a collision resulted.

According to the testimony of the defendant Miss Weibe, she was traveling in a southerly direction. She and her mother had left her mother's home in Hurdsfield earlier in the day and had driven to a farm where they purchased eggs. They were enroute back to Hurdsfield when the accident occurred. They had traveled over a series of knolls, or small hills, since the road traversed an area of rolling terrain. She testified that about a mile from the accident scene, while at the top of one of the knolls, she saw a white automobile ahead which she assumed was coming in her direction; that because the terrain was rolling she decreased her speed and followed a course of travel along the right-hand sice of the road. She testified that when she came to the crest of the hill where the accident occurred she saw the Mertz car approaching right in front of her, probably 100 to 120 feet away. She testified that her mother, who was riding with her, said, 'They are going to hit us'; that she then attempted to turn toward the ditch and thinks she 'pumped' her brakes once or twice, but testified that she did not know how far her car had traveled toward the west ditch when her car was hit by the Mertz car.

The other eyewitness to the accident, Miss Weibe's mother, did not testify.

The plaintiff, Alice Mertz,...