Newton v. Gretter
| Decision Date | 15 April 1931 |
| Court | North Dakota Supreme Court |
Appeal from the District Court of Ransom County, McKenna J.
Affirmed.
Richardson Thorp & Wattam and Frank J. Campbell, for appellants.
On doctrine of contributory negligence of defendant, see Nordby v. Sorlie, 35 N.D. 395, 160 N.W. 70; Armann v. Caswell, 30 N.D. 406, 152 N.W. 813; 2 Blashfield, Cyc. Auto. Law, 1704, 1731, 1732.
As to testimony as to speed of car, see Gausvik v. Larson Richter Co. 55 N.D. 218, 212 N.W. 846.
As to condition of car, see Whitworth v. Riley (Okla.) 59 A.L.R. 584.
As to defective lights and contributory negligence, see Smoke v. County (S.C.) 122 S.E. 862; Phillips v Davis, 3 F.2d 798, 40 A.L.R. 1241; Stuart v. Collins (Wis.) 229 N.W. 1533; Billingsley v. McCormick, 58 N.D. 913, 228 N.W. 424; Greenech v. Knoll (Cal.) 238 P. 163.
"A motorist or other traveler may be under an obligation, because of the character of the road along which a vehicle from the opposite direction is approaching, to stop and wait for it." 1 Blashfield, Cyc. Auto. Law, 405.
As to approaching bridges, see Id. pp. 105, 406; Wheeler v. Wall (Mo.) 137 S.W. 63; Buzick v. Todman (Iowa) 162 N.W. 259; Carruthers v. Campbell (Iowa) 192 N.W. 138; Carter v. Brown (Ark.) 206 S.W. 71.
"A gratuitous guest cannot idly sit bye, observe clear violations of law, in fact acquiesce in them, and then, in the event of an accident, hold his host liable in damages." Eddy v. Wells, 59 N.D. 663, 231 N.W. 785.
"Disregard of statutory duty may be a material fact and evidence of negligence." Axelson v. Jardine, 57 N.D. 524, 223 N.W. 32; Dare v. Boss, 111 Or. 190, 224 P. 646, 648; Billingsley v. McCormick, 58 N.D. 424.
"A mere temporary or incidental stop is regarded as a part of the operation of a car." 42 C.J. 1014.
"Where the facts do not afford ground for a reasonable inference, and a fortiori where they show that no such inference as that stated can be drawn, the evidence will be rejected." 22 C.J. 671.
"Neither should the evidence given by one expert be embraced in the hypothetical question submitted to another." 22 C.J. 712; Roger, Expert Testimony, p. 74; Hayes v. Hogan, L.R.A.1918C, 725.
"Where the data and evidence upon which the opinion is based are speculative, conjectural or unstable, it cannot be used as the basis of the hypothesis of an opinion." Roger, Expert Testimony, 2d ed. 33.
"Where the evidence on which the expert's judgment or opinion is given is inadmissible, the judgment or opinion should be excluded." Brady v. Richey (Tex.) 202 S.W. 170; Rupe v. State, 61 S.W. 922; 22 C.J. 707.
"Facts inadmissible of themselves cannot be proved as the basis for the opinion of an expert." 22 C.J. 716.
"Expert medical opinion should not be allowed to extend to the field of baseless conjecture concerning matters not susceptible of reasonably accurate conclusions." 11 R.C.L. 613.
Pierce, Tenneson, Cupler & Stambaugh, Frank E. Shaw, and Kvello & Adams, for respondent.
In determining the speed of an automobile at the time of a collision, it is proper for the jury to take into consideration the distance traveled by the machine after the collision and before it stopped. 2 Berry, Auto. 6th ed. 1046, § 1281.
"Testimony as to rate of speed of defendant's automobile a mile before reaching the place of accident was admissible where there was testimony that the rate of speed was not diminished between the point in question and the place of accident." 2 Berry, Auto. 6th ed. 1051; Tyrell v. Goslant, 93 Vt. 63, 106 A. 585.
"A witness could give her opinion of the speed of an automobile, although it was at night that she saw it, and it was coming directly towards her with its lights shining in her face." 2 Berry, Auto. 6th ed. 1042; Bianchi v. Miller, 94 Vt. 378, 111 A. 524.
As to duty of driver of car to keep lookout ahead and have his car under control, see Wilkins v. Bradford (Mich.) 225 N.W. 609; Altfilisch v. Wessel, 225 N.W. 862; Lett v. Summerfield (Mich.) 214 N.W. 939; Ruth v. Vroom (Mich.) 62 A.L.R. 1528, 222 N.W. 155; Billingsley v. McCormick Transfer Co. 58 N.D. 913, 228 N.W. 424; Roth v. Bloomquist (Neb.) 58 A.L.R. 1473, 220 N.W. 572; Tresise v. Ashdown (Ohio) 58 A.L.R. 1476, 160 N.E. 898; Morehouse v. Everett (Wash.) 58 A.L.R. 1482, 252 P. 157.
The question of proximate cause is a question of fact for the jury. Violation of statute or ordinance does not prevent recovery unless it was the proximate cause of the collision. Axelson v. Jardine, 57 N.D. 524, 223 N.W. 32; Sheffield v. Stone, O.W. Co. 49 N.D. 142, 190 N.W. 315; 45 C.J. 724. See also 2 R.C.L. 1192, note 12; Carlton v. Boudar, 4 A.L.R. 697, 88 S.E. 174; 42 C.J. 1139; Wilcox v. Wunderlich (Utah) 272 P. 207; Pratt v. Western Bridge & Constr. Co. (Neb.) 58 A.L.R. 531, 218 N.W. 397; Martin v. Carruthers (Colo.) 195 P. 105; Chambers v. Minneapolis, St. P. & S. Ste. M.R. Co. 37 N.D. 377, 163 N.W. 824.
The doctrine of last clear chance may be urged under a general allegation of negligence. Dubs v. N.P.R. Co. 42 N.D. 124, 171 N.W. 888; Acton v. Fargo & M. Street R. Co. 20 N.D. 434, 129 N.W. 225; Welch v. Fargo & M. Street R. Co. 24 N.D. 463, 140 N.W. 680; Lucas v. O. & C.B.S.R. Co. 177 N.W. 786.
"Where a person, already diseased sustains a personal injury, his previous condition does not prevent him from recovering all the damages resulting from the injury. . . ." Murphy v. Southern P. Co. 21 Ann. Cas. 502; 2 Shearm. & Redf. Neg. § 742; Maroney v. M. & St. L.R. Co. 49 L.R.A.(N.S.) 756, 144 N.W. 149; Keegan v. M. & St. L.R. Co. (Minn.) 78 N.W. 965.
"Reasonable probability" does not differ materially from "reasonable certainty." Holt v. School Dist. (Wash.) 173 P. 335; 22 C.J. 673-675, notes 71 to 76.
This is an appeal from a judgment for the plaintiff, for personal injury in an automobile accident. Plaintiff and her husband live at the town of Sheldon, North Dakota, and on Thanksgiving Day, 1929, they drove in their Ford automobile from Sheldon, a distance of six miles, to Enderlin to spend the day and evening with the plaintiff's father and mother. They traveled on highway "Ransom County A," that being the direct road between Enderlin and Sheldon. They started home about 10:30 or 11 o'clock at night. After they had driven about a half mile the head light on the right hand side went out. En route there is a tree claim and trees extending for a full half mile on the south side of the road. Along this part of the highway the snow had drifted and was about eight inches deep on the north side of the road and from three to six inches deep on the south side. The traffic was along the south side of the road and there were three meandering crooked ruts in the icy, hard, snow-packed road, three or four inches deep at the point where the accident happened. All traffic was in these ruts and the plaintiff and her husband claim that as they were traveling in the south ruts they saw the defendants' car approaching with "terrific speed," and they turned out of the ruts to the right hand side of the road and stopped to let the defendants pass. They testified that when they stopped, "their car was straddling the extreme south rut so that the center rut and the north rut were open with sufficient space for defendants' car to pass in safety;" that the left hand light in their car was bright and lit up the road for a distance of two hundred feet; that defendants' car was a quarter of a mile away when they turned out of the ruts; that defendants' car came on at a terrific speed with but one light; that they could not tell which light, in the distance, but saw later that it was the light on the right hand side of the car; that when the car was ten or twelve feet away they realized that they were going to be struck; that they were struck, the rim of the left hand light on defendants' car making an impression of a ring on the radiator of the Ford car. The Ford car was lifted up and thrown back some ten feet and lay on its side south of the road, partly in the ditch, with defendants' car right up against it.
The testimony of the plaintiff and her husband is corroborated in some respect by Roy Torfin. He said: "We took particular notice to the place where George had driven up and stopped and we kicked the snow aside and found that his right wheels were as near to the shoulder of the road as he could possibly get without going into the ditch." Q.
The defendants lived at Sheldon and defendant John Gretter had driven to Enderlin on Thanksgiving Day and back to Sheldon and was also familiar with the road. There was a dance in Sheldon on that night and one at Enderlin. John and his brother Joe and Byron Clayton were attending the dance at Sheldon and along between ten thirty and eleven o'clock they concluded to drive over to Enderlin to attend the dance there. All three of the boys rode in the front seat of the Pontiac coach, driving at least a part of the distance at the rate of fifty miles per hour. John Gretter and Byron Clayton testified that John was only going about twenty miles an hour when he ran...
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