Messer v. Bruening
| Decision Date | 17 May 1913 |
| Citation | 142 N.W. 158,25 N.D. 599 |
| Court | North Dakota Supreme Court |
Rehearing denied June 19, 1913.
From a judgment of the District Court for Foster County, Coffey, J defendant appeals.
Reversed and new trial granted.
Judgment set aside and case remanded, appellant recovered costs on this appeal.
T. F McCue, for appellant.
The plaintiff should not have been permitted to give his conclusions to the jury that the buggy was all right. American Soda Fountain Co. v. Hogue, 17 N.D. 375, 17 L.R.A.(N.S.) 1113, 116 N.W. 339.
Natural or imminent dangers do not necessarily follow or result from the use of an automobile. Expressions of such character by the court in its charge to the jury are prejudicial error. Moffitt v. Cressler, 8 Iowa 122; Farr v. Fuller, 8 Iowa 347.
Unsupported and misleading instructions constitute reversible error. Mundhenk v. Central Iowa R. Co. 57 Iowa 718, 111 N.W. 656; Mannion v. Talboy, 76 Neb. 570, 107 N.W. 750; Kilpatrick v. Richardson, 37 Neb. 731, 56 N.W. 481; Lang v. Bailes, 19 N.D. 582, 125 N.W. 891; Pattee v. Chicago, M. & St. P. R. Co. 5 Dak. 267, 38 N.W. 435.
Our laws regulate the use of automobiles. Rev. Codes §§ 2173, 2174; as amended by chap. 42, Laws 1909.
It is error for the court to place before the jury, in its instructions, matters and questions not presented in the pleadings. Stein v. Seaton, 51 Iowa 18, 50 N.W. 576; Whitsett v. Chicago, R. I. & P. R. Co. 67 Iowa 150, 25 N.W. 104; Cressy v. Postville, 59 Iowa 62, 12 N.W. 757; Barron v. Northern P. R. Co. 16 N.D. 277, 113 N.W. 102; Forzen v. Hurd, 20 N.D. 42, 126 N.W. 224; Sargent v. Linden Min. Co. 55 Cal. 204, 3 Mor. Min. Rep. 207; Western Home Ins. Co. v. Thorpe, 40 Kan. 255, 19 P. 631.
The court has no right to tell the jury they can give a verdict for any stated amount. 11 Enc. Pl. & Pr. 96; Pierce v. C. H. Bidwell Thresher Co. 153 Mich. 323, 116 N.W. 1104; Staal v. Grand Street & N. R. Co. 107 N.Y. 625, 13 N.E. 624, 5 Am. Neg. Cas. 273; Britton v. Grand Rapids Street R. Co. 90 Mich. 164, 51 N.W. 276, 4 Am. Neg. Cas. 123.
Instructions should be so framed and given as to guide the jury in considering the issues. Chicago City R. Co. v. Rohe, 118 Ill.App. 322; Coates v. Burlington, C. R. & N. R. Co. 62 Iowa 493, 17 N.W. 760.
There was no evidence of permanent injury. Illinois Iron & Metal Co. v. Weber, 196 Ill. 526, 63 N.E. 1008; Moorehead v. Hyde, 38 Iowa 382; Reed v. Chicago, R. I. & P. R. Co. 57 Iowa 23, 10 N.W. 285; Barron v. Northern P. R. Co. 16 N.D. 277, 113 N.W. 102, and cases cited; Leeds v. Metropolitan Gaslight Co. 90 N.Y. 86; Chicago & A. R. Co. v. Martin, 120 Ill.App. 254; Cicero & P. Street R. Co. v. Richter, 85 Ill.App. 591.
The defendant's request for instructions as to the position and acts of the parties at time of accident, as shown by the evidence, should have been granted. Rochford v. Barrett, 22 S.D. 83, 115 N.W. 522; Garland v. Keeler, 15 N.D. 548, 108 N.W. 484.
Edward P. Kelly, for respondent.
The driver of an automobile should use reasonable care in its operation according to place and presence of other travelers. Indiana Springs Co. v. Brown, 165 Ind. 465, 1 L.R.A.(N.S.) 238, 74 N.E. 615, 6 Ann. Cas. 656, 18 Am. Neg. Rep. 392.
Facts testified to from personal observation are not conclusions. 2 Jones, Ev. p. 805; Betts v. Chicago, R. I. & P. R. Co. 92 Iowa 343, 26 L.R.A. 248, 60 N.W. 623; Kelleher v. Keokuk, 60 Iowa 473, 15 N.W. 280; Smalley v. Iowa P. R. Co. 36 Iowa 571; Ferguson v. Davis County, 57 Iowa 601, 10 N.W. 906; Funston v. Chicago, R. I. & P. R. Co. 61 Iowa 452, 16 N.W. 518; Baltimore & O. R. Co. v. Rambo, 8 C. C. A. 6, 16 U.S. App. 277, 59 F. 75; Winter v. Central Iowa R. Co. 80 Iowa 443, 45 N.W. 737.
The court's charge to the jury on the matter of dangers natural to the use of automobiles was proper. The charge must be considered in its entirety. House v. Cramer, 134 Iowa 374, 10 L.R.A.(N.S.) 655, 112 N.W. 3, 13 Ann. Cas. 461; Wolfe v. Des Moines Elevator Co. 26 Iowa 659, 98 N.W. 301, 102 N.W. 517; Shinkle v. McCullough, 116 Ky. 960, 105 Am. St. Rep. 249, 77 S.W. 196, 15 Am. Neg. Rep. 63; Knight v. Lauier, 69 A.D. 454, 74 N.Y.S. 999, 12 Am. Neg. Rep. 157.
What defendant should have done, or should not have done at the time of the accident, is a question for the jury in determining the question of ordinary and reasonable care. Christy v. Elliott, 216 Ill. 31, 1 L.R.A.(N.S.) 215, 108 Am. St. Rep. 196, 74 N.E. 1035, 3 Ann. Cas. 487; Murphy v. Wait, 102 A.D. 121, 92 N.Y.S. 253; Thies v. Thomas, 77 N.Y.S. 276; Mahoney v. Maxfield, 102 Minn. 377, 14 L.R.A.(N.S.) 251, 113 N.W. 904, 12 Ann. Cas. 289.
Court has the right to call the jury's attention to the amount they may give, under the pleadings. Ladd v. Witte, 116 Wis. 35, 92 N.W. 365; Trumble v. Happy, 114 Iowa 624, 87 N.W. 679.
Where there is evidence of probable permanent injury, the question is properly submitted to the jury. Ashley v. Sioux City, Iowa , 93 N.W. 303; Cotant v. Boone Suburban R. Co. 125 Iowa 46, 69 L.R.A. 982, 99 N.W. 115, 16 Am. Neg. Rep. 26; Westercamp v. Brooks, 115 Iowa 159, 88 N.W. 372; Wimber v. Iowa C. R. Co. 114 Iowa 551, 87 N.W. 505; McCord v. Minneapolis, St. P. & S. Ste. M. R. Co. 96 Minn. 517, 105 N.W. 190; Ladd v. Witte, 116 Wis. 35, 92 N.W. 365.
Theories cannot be submitted to juries as proper questions for their consideration, unless supported by competent evidence. Smith v. Sedalia, 152 Mo. 283, 48 L.R.A. 711, 53 S.W. 907; Sprague v. Fletcher, 69 Vt. 69, 37 L.R.A. 840, 37 A. 239; State v. Coleman, 186 Mo. 151, 69 L.R.A. 381, 84 S.W. 978; Mitchell v. Charlestown Light & P. Co. 45 S.C. 146, 31 L.R.A. 577, 22 S.E. 767; Christy v. Elliott, 216 Ill. 31, 1 L.R.A.(N.S.) 215, 108 Am. St. Rep. 196, 74 N.E. 1035, 3 Ann. Cas. 487.
It is not error to refuse requested instructions, when questions involved are covered by general instructions. Burdict v. Missouri P. R. Co. 123 Mo. 221, 26 L.R.A. 384, 45 Am. St. Rep. 528, 27 S.W. 453; Western Assur. Co. v. J. H. Mohlman Co. 40 L.R.A. 561, 28 C. C. A. 157, 51 U.S. App. 577, 83 F. 811; Savannah, F. & W. R. Co. v. Daniels, 90 Ga. 608, 20 L.R.A. 416, 17 S.E. 647; Harris v. United States, 8 App. D. C. 20, 36 L.R.A. 465; Denver & R. G. R. Co. v. Roller, 49 L.R.A. 77, 41 C. C. A. 22, 100 F. 738.
Defendant appeals from an order denying a motion for new trial. Plaintiff recovered a verdict for $ 800, based upon injuries caused by the horse he was driving becoming frightened at an automobile owned and operated by defendant. The accident occurred on a level prairie where both parties had plenty of opportunity to avoid trouble. The road was of the usual four rods in width, with no embankments, and with plowed fields on either side. The immediate cause of the injury was the dashboard and front of the single buggy giving way when plaintiff attempted to control his horse, allowing him to slide forward into a dangerous position, immediately behind and almost against the animal. He sustained an injury to his leg, for which he has asked judgment for $ 3,200, made up of items of $ 2,000 for damages because of pain and injury suffered, $ 1,000 special damages for loss of time, and $ 200 special damages for medical attendance and treatment. The jury allowed a lump sum of $ 800.
Defendant, Bruening, had shortly before the accident been at the house of one Albus, situated about a half mile west of the main north and south highway. In coming from the house he had approached the highway from the west, and, upon reaching it, turned south, and had gone some distance, variously stated by witnesses to be from no distance at all to a mile, when he discovered that the radiator of the automobile needed water, and because of which he turned around to go back to the Albus place to fill it. He had two ladies in the car. One of them, who had often driven this automobile, was driving. Soon afterwards the two vehicles met while plaintiff was going south and defendant north on the level highway. When defendant had reached the highway coming from the Albus place, and first turned south, the plaintiff, who was also going south, was several hundred feet north of the point where defendant came into the highway. The defendant had driven the automobile, a two-seated Buick machine, for two years and was an experienced driver. The plaintiff was driving a young horse hitched to a single buggy. The accident occurred on the 8th of May, 1910. Plaintiff had purchased the horse and buggy in March of that year. His wife was with him. Both plaintiff and defendant lived in Carrington, and the accident occurred about 6 miles south of that place, defendant having, on the way out to the Albus place, overtaken and passed the plaintiff some little time previously.
The accident occurred in broad daylight. The distance between the two approaching vehicles from the time defendant turned around to go back for water is variously placed at from a mile to less than a block. The plaintiff testifies that he was about 500 feet to the north of the point where defendant entered the highway on turning south coming from Albus's place. As the accident occurred some distance south of such point, the automobile must have gone a considerable distance south before turning, to have given plaintiff the time to drive the 500 feet and such additional distance as he was past the intersection of the road coming from the farmhouse with the highway. Had plaintiff not been south of this intersection, defendant would not have met him while returning, as he was, to the Albus house. During this time defendant was traveling southward, as he states, at a speed of from 15 to 18 miles an hour, and so constantly increasing the 500 foot distance intervening...
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