Nichols v. Kluver

• Decision Date: 22 May 1931
• Docket Number: No. 5810.,5810.
• Citation: 61 N.D. 42,237 N.W. 640
• Parties: NICHOLS v. KLUVER et al.
• Court: North Dakota Supreme Court

61 N.D. 42

237 N.W. 640

NICHOLS

v.KLUVER et al.

No. 5810.

Supreme Court of North Dakota.

May 22, 1931.

Syllabus by the Court.

In an action for personal injuries claimed to have been sustained by the plaintiff on account of his being struck by a motorcycle ridden by one of the defendants (who is an employee of the other defendant), it is held:

That assignments of error predicated upon rulings in the admission of evidence are not well founded.

Syllabus by the Court.

That the questions of negligence and contributory negligence were for the jury, and that the trial court was correct in denying motions for a dismissal of the action, and for a directed verdict in favor of the defendants.

Additional Syllabus by Editorial Staff.

Instructions complained of were in accord with allegations of complaint. Evidence tended to show that plaintiff was suffering from pain received from accident up to time of trial, and that he had been from time of accident incapacitated from performing manual labor of the kind he had formerly been engaged in.

Appeal from District Court, Ward County; Lowe, Judge.

Action by Calvin L. Nichols against Henry A. Kluver, sole trader, etc., and another. From a judgment for the plaintiff, and from an order denying his motion for judgment notwithstanding the verdict, or for a new trial, defendant named appeals.

Affirmed.

McGee & Goss, of Minot, for appellant.

L. J. Palda, Jr., Robt. W. Palda and C. E. Brace, all of Minot, for respondents.

CHRISTIANSON, C. J.

Plaintiff brought this action to recover damages for personal injuries. He was awarded a verdict in the sum of $3,000. The defendant has appealed from the judgment, and from the order denying his motion for judgment notwithstanding the verdict, or for a new trial. The following material facts are not in dispute: On the evening of December 21, 1928, between 5 and 6 o'clock, the defendant Christopher, an employee of the defendant Kluver, while riding a motorcycle on one of the streets of the city of Minot, collided with the plaintiff Nichols and knocked him down, with the result that Nichols sustained certain injuries, among others a broken leg. As a result of the injuries then sustained, the plaintiff was confined to his house for a considerable period of time, and incurred or expended for medical services and treatment a sum of to exceed $135. As regards the other facts, there is more or less conflict or dispute in the evidence.

The plaintiff testified that the accident occurred about 5:30 p. m., while the defendant Christopher testified that it occurred about twenty minutes earlier. The plaintiff Nichols testified that it was dark at the time of the collision. His version of the accident is substantially as follows: Nichols parked his car or truck on the opposite side of the street from a place known as the Swiss Tire Shop, and he then took a tire in there for repair. After the tire had been repaired, he came out of the tire shop to the curb, and stood there about six feet from the curb and waited while two cars passed, one going in each direction. After the cars had passed, he looked both ways to see whether there were any cars approaching. Seeing none, he stooped to pick up his tire to carry it across the street, and had just picked it up when he was knocked over. He further testified that thereafter he knew nothing about what happened until the next day when he found himself in bed. He testified positively that he looked in both directions after the last car passed before attempting to cross the street, but could not see any vehicle coming, and could have seen one if one was coming. He testified that a car was standing on the east side of the street, north of where he attempted to cross. He further testified that he heard no blowing of the horn or other warning; and, according to his testimony, the vehicle that struck him had no lights. His testimony further shows that when he regained consciousness, and from then on, he had pains in his leg, shoulder, and back, and was in bed for four weeks after the accident. After he got out of bed, he was around on crutches and continued to have soreness through his stomach, back, and shoulders, and passed blood from the bowels. On April 3, 1929, he had an operation at the Trinity Hospital, and since then has passed no blood. He testified that since the accident he has worked, at different times, for two different concerns. He further testified that the street on which the accident occurred is a through, or stop street, where all traffic crossing it is required to stop, and all vehicles thereon have the right of way over traffic across it. He further testified that there was only one car parked on the east side of the street at the time he attempted to cross, such car being about fifty feet north of the Swiss Tire Shop. According to his testimony, he was about six feet from the curb at the time he was struck, and had been standing in that position watching the traffic until the street appeared to be clear. He further testified that the different cars that passed had lights.

The defendant Christopher testified that at the time of the accident he was coming down the street going north, about forty feet behind a car going in the same direction; that he did not see a car coming from the north until it passed, and that this car obstructed his view; that there were other cars going in the same direction, so that there were four cars in a line, and that he thereupon moved to the right side of the street as far as he could, and just as he did so he looked up and observed that he was only about five feet from Nichols; that Nichols at that time was behind the car parked in front of the Swiss Tire Shop; that he realized he hit something, but thought it was the tire, and that he saw the tire; that at the time Nichols was about a foot and a half or two feet from the parked car; that at the time the lights on the motorcycle were burning and the brakes working; that when he saw Nichols he (Christopher) turned out toward the center of the street as sharply as possible; that his sidecar lifted, and that he knew if he turned more sharply it would upset; that he stopped in about twenty feet and saw Nichols getting up, and figured that he was all right and so did not stop. The evidence further shows that Mr. Swiss, the owner of the Swiss Tire Shop, came out shortly after the accident had occurred and noticed that Nichols had been injured; that he (Nichols) said something about a motorcycle, and that Swiss thereafter followed and made a search for the motorcycle, and finally located it; that he had a talk with Christopher at the time.

On this appeal, appellant has specified some eighty-nine errors.

[1] The first assignments are predicated upon rulings relating to the cross-examination of the defendant Christopher under the statute. Upon the record presented on this appeal, the assignments are obviously without merit. Christopher was a party defendant. The cross-examination was restricted by the trial court within...