Nordby v. Sorlie

• Decision Date: 10 November 1916
• Citation: 160 N.W. 70,35 N.D. 395
• Court: North Dakota Supreme Court

160 N.W. 70

35 N.D. 395

ARVID NORDBY v. O. J. SORLIE

Supreme Court of North Dakota

November 10, 1916

Rehearing denied December 2, 1916.

Appeal from the District Court of Traill County, Cooley, Special Judge.

Reversed and action ordered dismissed.

Judgment reversed, and judgment of dismissal of this action ordered.

Henry Leum and Chas. A. Lyche, for respondent.

Generally speaking, a person knows and can testify to the fact as to whether or not he was intoxicated at a past given time and place, and to ask him the question is not calling for his mere conclusion. People v. Eastwood, 14 N.Y. 562; Com. v. Eyler, 217 Pa. 512, 66 A. 746, 10 Ann. Cas 786, and extensive note in 11 L.R.A.(N.S.) 639.

The fact that the same or another person to whom defendant is responsible for a similar negligent act showed similar negligence cannot be shown. Malton v. Nesbit, 1 Car. & P. 70.

Prior and other negligent acts of the plaintiff cannot be shown. Edwards v. Ottawa River Nav. Co. 39 U. C. Q. B. 264; Southern Bell Teleph. & Teleg. Co. v. Watts, 13 C C. A. 579, 25 U. S. App. 214, 66 F. 461; Delaware, L. & W. R. Co. v. Converse, 139 U.S. 469, 35 L.Ed. 213, 11 S.Ct. 569; Little Rock & M. R. Co. Harrell, 58 Ark. 468, 25 S.W. 117, 11 Am. Neg. Cas. 144; T. & H. Pueblo Bldg. Co. v. Klein, 5 Colo.App. 348, 38 P. 608; Lake Erie & W. R. Co. v. Morain, 140 Ill. 117, 29 N.E. 869; Chicago, B. & Q. R. Co. v. Lee, 60 Ill. 501; Dalton v. Chicago, R. I. & P. R. Co. 114 Iowa 257, 86 N.W. 272; Chicago, R. I. & P. R. Co. v. Durand, 65 Kan. 380, 69 P. 356, 12 Am. Neg. Rep. 29; Hutcherson v. Louisville & N. R. Co. 21 Ky. L. Rep. 733, 52 S.W. 955; Parker v. Portland Pub. Co. 69 Me. 173, 31 Am. Rep. 262; Aiken v. Holyoke Street R. Co. 184 Mass. 269, 68 N.E. 238; Whitney v. Gross, 140 Mass. 232, 5 N.E. 619; Maguire v. Middlesex R. Co. 115 Mass. 239; Robinson v. Fitchburg & W. R. Co. 7 Gray, 92; Detroit & M. R. Co. v. Van Steinburg, 17 Mich. 99; Southern R. Co. v. Kendrick, 40 Miss. 382, 90 Am. Dec. 332; Newstrom v. St. Paul & D. R. Co. 61 Minn. 78, 63 N.W. 253, 12 Am. Neg. Cas. 136; Kennon v. Gilmer, 5 Mont. 257, 51 Am. Rep. 45, 5 P. 847; International & G. N. R. Co. v. Ives, 31 Tex. Civ. App. 272, 71 S.W. 772; Gulf, C. & S. F. R. Co. v. Rowland, 82 Tex. 166, 18 S.W. 96; Contra, Galveston, H. & S. A. R. Co. v. Kutac, 76 Tex. 473, 13 S.W. 327; Hays v. Gainesville Street R. Co. 70 Tex. 602, 8 Am. St. Rep. 624, 8 S.W. 491; Christensen v. Union Trunk Line, 6 Wash. 75, 32 P. 1018.

Theo. Kaldor and John Carmody, for appellant.

A public highway is open in all its length and breadth to the reasonable, common, and equal use of the people on foot or in vehicles. In using the highways all people are bound to the exercise of reasonable care to prevent accidents and injury. The owner of an automobile has the same rights as the owners of other vehicles. 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; Hennessey v. Taylor, 189 Mass. 583, 3 L.R.A.(N.S.) 345, 76 N.E. 224, 4 Ann. Cas. 396, 19 Am. Neg. Rep. 285; 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; Fox v. Barekman, 178 Ind. 572, 99 N.E. 989; Messer v. Bruening, 48 L.R.A.(N.S.) 945, and note, 25 N.D. 599, 142 N.W. 158; Minor v. Stevens, 42 L.R.A.(N.S.) 1178, note.

Plaintiff was guilty of contributory negligence, and his own negligence was the direct cause of his injury. He exercised no care, according to the admitted facts, and was violating the state law as to speed. Thies v. Thomas, 77 N.Y.S. 276; Nadeau v. Sawyer, 73 N.H. 70, 59 A. 369; McIntyre v. Orner, 166 Ind. 57, 4 L.R.A.(N.S.) 1130, 117 Am. St. Rep. 359, 76 N.E. 750, 8 Ann. Cas. 1087; Wright v. Crane, 142 Mich. 508, 106 N.W. 71, 19 Am. Neg. Rep. 336; Newcomb v. Boston Protective Dept. 146 Mass. 597, 4 Am. St. Rep. 354, 16 N.E. 555; Babbitt, Motor Vehicles, P 250; Wolfe v. Ives, 83 Conn. 174, 76 A. 526, 19 Ann. Cas. 752; Spofford v. Harlow, 3 Allen, 176; Butterfield v. Forrester, 11 East, 60, 103 Eng. Reprint, 926, 10 Revised Rep. 433, 19 Eng. Rul. Cas. 189; Huddy, Automobiles, 3d ed. p. 102; Brooks v. Hart, 14 N.H. 307; Clay v. Wood, 5 Esp. 44, 8 Revised Rep. 827; Thomp. Neg. 2d ed. § 1287; Decou v. Dexheimer, N.J.L. , 73 A. 49.

A traveler on the public highway is not with heedlessness to rush into danger because his fellow traveler has wrongfully given him the opportunity to receive an injury. He must use ordinary care to avoid injury that otherwise might result from the faults of others. Parker v. Adams, 12 Met. 415, 46 Am. Dec. 694; Loftus v. North Adams, 160 Mass. 161, 35 N.E. 674; Cassedy v. Stockbridge, 21 Vt. 391.

Proof of unskilful and reckless driving will preclude plaintiff from recovering, if his conduct contributed to the injury. Peoria Bridge Asso. v. Loomis, 20 Ill. 236, 71 Am. Dec. 263; Huddy, Automobiles, 3d ed. § 79, pp. 101, 136, 156 and 157; Vesper v. Lavender, Tex. Civ. App. , 149 S.W. 377.

Where an automobile is handled with care, but, on account of the condition of the streets, skids and injures a person, the owner or driver is not liable. Chase v. Tingdale Bros. 127 Minn. 401, 149 N.W. 654; Oxford Hotel Co. v. Lind, 28 L.R.A.(N.S.) 495, note.

A verdict or decision that, under the evidence, is contrary to the law governing the case, must be set aside; or, if contrary to the weight of the evidence, must be set aside. Benedict v. Lawson, 5 Ark. 514; Crocker v. Garland, 7 Cal. Unrep. 275, 87 P. 209.

The evidence here is not even sufficiently conflicting to allow the verdict to stand. It is not a question of the weight of the evidence on the part of defendant, but rather a matter of no evidence to sustain the action, or support the verdict. Malmstad v. McHenry Teleph. Co. 29 N.D. 21, 149 N.W. 690; Behling v. Wisconsin Bridge & Iron Co. 158 Wis. 584, 149 N.W. 486; Fuller v. Northern P. Elevator Co. 2 N.D. 220, 50 N.W. 359.

A new trial will always be granted where the verdict is plainly and manifestly against the weight of the evidence. A statute which authorizes a new trial for insufficient evidence confers power to grant a new trial where the verdict is against the weight of the evidence. McDonald v. Walter, 40 N.Y. 551; Inland & S. Coasting Co. v. Hall, 124 U.S. 121, 31 L.Ed. 369, 8 S.Ct. 397; Metropolitan R. Co. v. Moore, 121 U.S. 558, 30 L.Ed. 1022, 7 S.Ct. 1334; Fuller v. Northern P. Elevator Co. 2 N.D. 220, 50 N.W. 359; Reynolds v. Lambert, 69 Ill. 495; Fox River Mfg. Co. v. Reeves, 68 Ill. 403; Blake v. McMullen, 91 Ill. 32; Reid v. Colby, 26 Neb. 469, 42 N.W. 485; Comp. Laws 1913, § 7660.

OPINION

GOSS, J.

Assignments upon refusal to direct a verdict challenge the sufficiency of the evidence to sustain a $ 2,500 verdict against defendant as damages from a motor cycle and automobile collision.

Defendant resides at Buxton. On Sunday, July 12, 1914, with his family he went by automobile 18 miles to Mayville, where a Chautauqua was being held. He left Mayville for home about 6 P. M. Two other autos, driven by Knudson and by Gunderson, left just ahead of Sorlie, running in that order. They met plaintiff coming on his motorcycle, 6 miles out. They were going east and plaintiff west. Less than a mile intervened between the lead machine of Knudson's and Sorlie's automobile. Plaintiff met and passed the autos of Knudson and Gunderson, overtook and passed a team, and then met and collided with Sorlie's machine. Plaintiff broke his leg, necessitating its amputation.

At the place of the accident the main traveled roadway ran to the extreme left and north side of a wide crowned but somewhat rough highway. From ditch to ditch the driveway was wide enough for three rigs abreast, but the traveled roadway ran well to the north side, with ruts worn in by travel to a depth of 1 1/2 inches, as estimated by plaintiff's witnesses, to 3 1/2 inches according to defendant's measurements. Seeing plaintiff coming, defendant endeavored to turn out of the ruts, but succeeded in getting only his front wheels out, while the rear ones remained in them, sliding along, but not mounting the rut so as to carry the rear of the machine over to the right, clearing plaintiff's half of the roadway. Seeing Sorlie turning out, plaintiff assumed that the auto would be out of the north track of the roadway, until too late to avoid striking the rear wheel.

Plaintiff assumes (1) that Sorlie was negligent in being upon the left side of the highway (although within the traveled roadway) instead of upon the untraveled right side of the highway; and (2) in not having his machine under control because of alleged high speed at which plaintiff claims Sorlie was traveling. Sorlie asserts that he had a right to be where he was, exactly in the route of ordinary travel, and hence was not negligent; and also that he was not driving at more than 15 miles an hour at the time, and was not negligent in any way, but was doing his utmost to get out of plaintiff's way when plaintiff dashed into his rig. And Sorlie claims that the uncontradicted testimony establishes conclusively that plaintiff caused his injury by his own contributory negligence in failing to slacken his speed or control his motor cycle while attempting to pass defendant at a high and excessive rate of speed.

The first contention that defendant was upon the wrong side of the highway, and that negligence based upon that fact alone can be assumed, is untenable. While the highway to the south might have been traveled had it been necessary to do so, it was not the generally traveled roadway, otherwise the ruts would not have been worn. The remainder of the highway was practically untraveled. As defendant was but traveling where all others drove, he was only doing what all others had done and...