Morton v. Dakota Transfer & Storage Co.

• Decision Date: 04 December 1951
• Docket Number: No. 7200,7200
• Citation: 78 N.D. 551,50 N.W.2d 505
• Court: North Dakota Supreme Court
• Parties: MORTON v. DAKOTA TRANSFER & STORAGE CO.

Page 505

50 N.W.2d 505

78 N.D. 551

MORTON v. DAKOTA TRANSFER & STORAGE CO.

No. 7200.

Supreme Court of North Dakota.

Dec. 4, 1951.

Rehearing Denied Jan. 4, 1952.

Syllabus by the Court.

1. A motorist whose view is obscured by atmospheric conditions or by smoke must exercise care commensurate with the situation and cannot assume that his course of travel is free of danger or obstruction in the absence of ability to see clearly.

2. Where evidence permitted jury to find that plaintiff drove a vehicle into smoke, which covered a highway and limited his vision to a few feet, at an excessive rate of speed, it could also find that such excessive speed contributed proximately to cause a collision between the vehicle plaintiff was driving and that driven by defendant's employee even though the collision occurred two and a half feet over the center line on plaintiff's side of the highway, particularly where the evidence also showed there remained adequate unobstructed space for passing on plaintiff's side of the highway.

3. Where a motion for a new trial is made, errors of law, including errors in instructions, not specified in the motion for a new trial, are waived.

4. Inapplicable instructions are not prejudicial unless they would tend to mislead the jury.

5. Instructions to a jury must be considered and construed as a whole.

6. The instructions specified as error in this case are held, for reasons stated in the opinion, to be not prejudicial to plaintiff and appellant.

Day, Lundeberg, Stokes, Vaaler & Gillig, Grand Forks, for plaintiff and appellant.

Burtness, & Shaft, Grand Forks, for defendant and respondent.

BURKE, Judge.

This action is one for damages arising out of a collision of motor vehicles. The issues of negligence and contributory negligence raised by the pleadings in the case were tried to a jury and judgment for the dismissal of the action was entered pursuant to the jury's verdict. Plaintiff thereafter moved for a new trial. The motion was denied and plaintiff has appealed both from the order denying a new trial and from the judgment.

Plaintiff's first contention upon this appeal is that the evidence in the case conclusively establishes actionable negligence on the part of defendant's employee, that there is no evidence of contributory negligence on the part of the plaintiff and that plaintiff is therefore entitled to a judgment as a matter of law.

The vehicles involved in the collision were a tractor and semi-trailer owned by the defendant and operated by one of his employees and a Ford station wagon owned and operated by the plaintiff. Immediately prior to the collision, plaintiff was driving east and defendant's employee was driving west on highway number 2 a short distance west of Grand Forks. At a point between the two vehicles, a crew of the State Highway Department was burning the vegetation which had grown up in the ditches beside the highway. The smoke from the fire was carried across the highway and formed a smoke screen between the two vehicles. The vehicles entered this smoke screen from opposite directions and collided at some point within its extent. Plaintiff testified that defendant's vehicle was right on top of him before he saw it and defendant's driver testified that he didn't see plaintiff's vehicle until the first contact between the vehicles took place.

Defendant's employee testified that he entered the smoke at a speed of between four and eight miles an hour; that he found the smoke heavier than he thought it would be; that he could hardly see beyond his radiator; that he could see neither the center line nor the edge of the highway and that he proceeded in what he thought was a straight line on his side of the road.

Plaintiff testified that upon entering the smoke, he slowed down to twenty miles an hour; that he could see a safe distance ahead at the rate he was going; that he could see the shoulder on his right hand side and that he pulled clear over to the right hand side of the road.

An employee of the highway department testified that he was working west of the fire and the smoke; that he saw the top of defendant's van approaching above the smoke; that he saw plaintiff nearing the smoke at a speed of 50 to 60 miles an hour; that plaintiff did not slow down as he approached; that he had no flag, but that he attempted to warn plaintiff by waving his hands and his hat; that plaintiff said afterwards that he didn't see him.

The collision was almost avoided. Apparently the bumpers of the two vehicles barely touched as they passed. Plaintiff's vehicle continued on past the fenders and cab of the tractor without contact. Its left front wheel then collided with the outside drive wheel of the tractor. There is a conflict in the evidence as to whether there was any further contact between the vehicles. Whether there was or not, plaintiff's car continued on, turned sharply to the left after it passed the van and went into the ditch on the north side of the road.

A deputy sheriff of Grand Forks County, a witness for the plaintiff, who viewed the scene of the accident testified as to the marks he saw on the highway and gave his conclusions as to their significance. He stated that the marks indicated that the point of impact was two to two and half feet south of the center line of the highway. The highway had an oiled surface 20 feet wide and an unsurfaced shoulder on each side.

Plaintiff concedes that the evidence was such that the jury might have found that he was traveling at a high rate of speed through the smoke, but he contends such speed whatever it may have been, did not contribute proximately to cause the collision. His argument, as we understand it, is, that the marks left on the highway conclusively demonstrate that the collision occurred on the south or plaintiff's side of the highway; that plaintiff was where he lawfully had a right to be, and that the collision would have happened, whether he was traveling slowly or rapidly. Apparently it is plaintiff's theory that upon entering a screen of smoke which reduces visibility to practically zero, a driver owes no other duty to protect himself or the public except to stay upon his own side of the road. This clearly is not the law.

In Schaller v. Bjornstad, N.D., 40 N.W.2d 59, the nature of the duty owed by a motorist whose view is obscured is discussed at some length and it is therein stated that a motorist whose vision is obscured by atmospheric conditions such as fog or rain must exercise care commensurate with the situation and cannot assume that his course of travel is free of danger or obstruction in the absence of ability to see clearly. In Bagan v. Bitterman, 65 N.D. 433, 428, 259 N.W. 266, 267 we quoted with approval from Garrison v. City of Detroit, 270 Mich. 237, 258 N.W. 259, as follows: 'A driver must anticipate such objects, lighted or unlighted, carefully or negligently driven or parked, and guard against collision with them.'

As we have said, it is conceded in the instant case, that the jury could have found that plaintiff traveled through the smoke at a high or excessive rate of speed. They could also have found that that speed contributed proximately to cause the collision. The surfaced portion of the highway was 20 feet...