Newton v. Gretter
| Decision Date | 15 April 1931 |
| Docket Number | No. 5889.,5889. |
| Citation | 60 N.D. 635,236 N.W. 254 |
| Parties | NEWTON v. GRETTER et al. |
| Court | North Dakota Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
Whenever a motor vehicle is parked or stopped upon a highway, whether attended or unattended, during a period from a half an hour after sunset to a half an hour before sunrise, and there is displayed upon such motor vehicle during such time one lamp projecting a white light visible under normal atmospheric conditions from a distance of five hundred feet to the front of such motor vehicle, such lighting is a sufficient compliance with section 55 of chapter 162, Session Laws of 1927.
Syllabus by the Court.
In order to constitute contributory negligence, as a matter of law, the facts and circumstances must be such that no other inference can fairly and reasonably be drawn therefrom.
Syllabus by the Court.
The questions of the negligence of the defendants and the contributory negligence of the plaintiff in the instant case were questions of fact for the jury, and their verdict is conclusive.
Syllabus by the Court.
A doctor who has made a personal physical examination of an injured person may give his opinion in evidence as to the extent of the injuries and whether they are probably permanent, based upon the personal physical examination.
Syllabus by the Court.
The opinion evidence of the physicians that the particular injuries under which the plaintiff was suffering at the time of the trial in the instant case would probably continue permanently was not speculative nor conjectural, as it referred specifically to the injuries of the plaintiff then existing.
Syllabus by the Court.
In the instant case one doctor testified that the injuries of the plaintiff were of a permanent nature, but might respond to treatment. Such qualification that they might respond to treatment did not take from the jury the question of the permanency of the injuries, and there was no error in submitting that question to the jury under the following instruction: “In determining whether or not plaintiff's injuries will be permanent, you should take into consideration the nature of her injuries as disclosed by the evidence, whether or not such injuries may be cured by the proper remedial medical treatment or care, and whether or not such conditions would be improved or become progressively worse, in the light of all the testimony.”
Appeal from District Court, Ransom County; George M. McKenna, Judge.
Action by Bertha Newton against M. Gretter, individually and as guardian ad litem for John Gretter. Judgment for plaintiff, and defendants appeal.
Affirmed.
Richardson, Thorp & Wattam and Frank J. Campbell, all of Fargo, for appellants.
Pierce, Tenneson, Cupler & Stambaugh, of Fargo, Frank E. Shaw, of Sheldon, and Kvello & Adams, of Lisbon, for respondent.
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, N. D., 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 headlight 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 said 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.”
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 10:30 and 11 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 into the Newton car. He did not apply his brakes or make any effort to stop his car until it was ten feet from the Ford. He saw the Ford when it was a half mile away; knew that he was approaching the ruts, that he had to go to the south side of the road to travel in them; he saw that the Newton car had but one light; he claims that he was in the two north ruts, and that when he got within ten feet of the Ford he turned out of these ruts, got his front wheels out, but his rear wheels spun in the ruts and he slid into the Ford. The left front of each radiator was badly damaged, and, after the collision, both cars were south of the center of the road, the Ford extending out into the ditch and the Pontiac was nearly against it. Neither car was ever repaired. In making these ruts, as a matter of course, if the car was traveling west with the right wheel in the north rut, the left wheel would be in the center rut. If the car was traveling east with the right wheel in the south rut, the left wheel would be in the center rut, no cars could travel in the ruts without using the center rut, and cars could not meet and pass unless one car turned out of the ruts leaving two ruts free for the other car to pass in.
It is the contention of the defendants that the plaintiff was guilty of contributory negligence in driving into danger; that he discovered that his right light was out when he was only a short distance from Enderlin, and that it was his duty to go back and have his light fixed; that he drove into danger voluntarily, and hence cannot recover because of his own contributory negligence. If the plaintiff was negligent in not driving back and fixing his light, such negligence would not prevent a recovery unless that particular act of negligence contributed to the injury. There was no apparent danger when the plaintiff drove into the ruts; it was after they had been driving in the ruts for some little time that they saw the defendants' car coming, as they say, at a terrific speed, and he and the plaintiff claim that they got out of the ruts leaving plenty of room for the defendants to pass in safety.
[1] It is the contention of appellants in specifications of errors Nos. 36 and 37 “that the court erred in instructing the jury in substance to the effect that it was the law of this state that where a car is stopped on the highway for the purpose of passing another car, temporarily stopped for some reason on the road, that the law is complied with if the car has one of the two front lights burning.” There is no merit to this contention. The law applicable to the situation which the trial judge read to the jury is as follows: “Whenever a motor vehicle is parked or stopped upon a highway whether attended or unattended during the time mentioned in section 49 [] there shall be displayed upon such motor vehicle one or more lamps projecting a white light visible under normal atmospheric conditions from a distance of five hundred feet to the front of such motor vehicle. * * *” Section 55, chap. 162, S. L. 1927. It will be noted that the statute uses the term “parked or stopped.” In either case one light is sufficient, provided it can be seen for a distance of five hundred feet, and in the case...
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