Pachl v. Officer, 7314

• Decision Date: 26 August 1952
• Docket Number: No. 7314,7314
• Citation: 79 N.D. 143,54 N.W.2d 883
• Parties: PACHL v. OFFICER et al.
• Court: North Dakota Supreme Court

Page 883

54 N.W.2d 883

79 N.D. 143

PACHL v. OFFICER et al.

No. 7314.

Supreme Court of North Dakota.

Aug. 26, 1952.

Rehearing Denied Oct. 13, 1952.

Syllabus by the Court.

1. Questions of negligence and contributory negligence are questions of fact for the jury to determine when reasonable minds might draw different conclusions from the facts.

2. When the facts relating to negligence or contributory negligence are not in dispute and but one conclusion can reasonably be deduced therefrom the question of negligence or contributory negligence becomes a question of law for the court.

3. Evidence examined and it is held to establish as a matter of law that the decedent's negligence contributed proximately to his death.

Lyche & Lyche, Grand Forks, for appellant.

Degnan, Hager & McElroy, Grand Forks, for respondents.

GRIMSON, Judge.

This is a suit for damages resulting from an automobile accident. On the evening of Sept. 9, 1949, James Pachl, a single man, 22 years of age, together with his friend, Donald Voiss, a young man 21 years old, left Grand Forks in Pachl's dark colored, Ford car to go to a dance at Ardoch. Before they left the city they bought six pints of beer, drank one each at the time and one after leaving town. When they had gone about eight or nine miles west on Highway No. 2 they had a flat tire. They drew to the north side of the road, almost if not, entirely off the pavement. There they left the car without lights or flares. The time was about 7:45 P.M. It was a clear night just turning dark. They found the tire was ruined and that the spare tire was flat. They drank a third can of beer each and decided to take off the spare and to stop a car for a ride into the city to have it repaired. Voiss began taking off the tire. Pachl was standing at his right. Voiss describes it this way:

'Well, we got some tools out of the car and started to take the tire off the back end of the car and I was taking the tire off as Jim was standing by my right side, and he happened to look up and seen the lights of a car coming so he started crossing the highway to flag it down and as he ran he said, 'Hurry up, Don, there is a car coming.' Shortly after that I heard the crash. * * *

'Q. Did you hear the brakes screech just before the accident? A. Oh, it came about all at the same time.

'Q. There wasn't any--you might say, noticeable interim between the impact as you heard it and the screech of the brakes, is that right? A. Not too much * * * just so close you couldn't hardly tell them apart.

'Q. Where was Jim the first time you saw him after the impact? A. He was laying, face down, on the shoulder of the road.

'Q. Did you see him before he landed on the road? A. Yes. He was just above the car.

'Q. When you heard the brakes and the impact I take it you looked up? A. Yes, I turned.

'Q. Now, will you tell us in your own language what you saw. A. I turned around and I seen James body just coming up--just as it was above the hood and crashed into the visor of the car and flew about a few--couple or three feet above the car and then lit on the highway and rested on the shoulder of the road on the south side.

'Q. Well, just so I understand it, I believe you mean to tell us he went clear over the top of the car? A. Yes.

'Q. And did you see any part of the car strike him? A. Just the visor, that is all.

'Q. So that you did not see the front part of the car, as shown in Exhibit A. strike him? A. No.

'Q. So I take it the screech of the brakes and sound of the impact and you looking up all took place just about simultaneously? A. Yes.

'Q. Did you move Jim or was he moved while you were there until they put him on the stretcher? A. I turned him over on his back.

'Q. Did he say any words at all after you came over there? A. No.

'Q. It is your impression that he died almost instantly? A. Yes.'

The car that thus hit James Pachl was a 1948 Chevrolet, Tudor automobile, which had been driven between nine and ten thousand miles. It was in good condition, with four wheel, hydraulic brakes. At the time of the accident it was being driven by George Officer. The two Officers with their wives and one additional passenger, Inez Olness, had left Ryder, North Dakota, that morning and were on their way to Grand Forks on business. From there they had intended to go to Detroit Lakes. At the time of the accident George Officer claims to have been driving 45 miles an hour. Regarding the accident he testified:

'Q. Now, would you explain to the court and jury how the accident happened as you saw it? A. I was just driving down the road and here came--I seen this figure right in the middle of the road and he leaped----

'Q. You saw the figure in the middle of the road? A. That's right, that is where I first seen him and he leaped and I caught him on this fender.

'Q. And about how far was he from the car when you first saw him. A. From his car?

'Q. No, from your car? A. From my car. Oh that would be hard to say. It was just--when I seen him I tried to miss him and it just happened that quick. I would say the wasn't 15 feet.

'Q. From your car? A. Yes.

'Q. And how was he moving? A. He was running and he leaped into the air.

'Q. And from which direction was he coming and which way was he running? A. He was going directly south; he was coming from the north.

'Q. And you hadn't seen him prior to the time you mentioned? A. No.

'Q. And where did he come from? A. Just out of the darkness.

'Q. And do you remember what you did when you saw that figure ahead of you? A. I slammed on my brakes.

'Q. And did you do anything else that you recall? A. I tried to swerve to the north a little bit to avoid hitting him. If I hadn't done that I would have got him right in the middle of the car.

'Q. You tried to swerve to the north to avoid hitting him? A. That's right, yes.

'Q. Now, you mentioned he leaped. You know which way he was facing or anything about which way he was turned or anything when he leaped like that? A. Well, his hands were above him and--I don't know, he was just all sprawled out. You didn't know what it was at first, but he was just sprawled out. Maybe twisted himself.

'Q. And do you remember what happened after you hit him, to James Pachl? Do you know where he fell? I mean before you got out could you determine what happened to the body? A. No, I couldn't. The hood flew up as soon as I hit him.

'Q. I see. A. And I had all I could do to try to stop without anything going wrong with us.

'Q. You recall whether or not your car swerved? A. It swerved a little after the impact.

'Q. And you brought the car to a stop? A. I brought the car to a stop.

'Q. And did you have your lights on? A. Yes.

* * *

* * *

'Q. And in your best judgment the best way to describe it was that he was running south from the north directly across the highway and he made a leap? A. He made a leap.

'Q. And you saw him some 15 feet prior to that and swerved to the north, to your left, to avoid him? A. That's right.

'Q. And the impact would be towards the right part of the car. A. Yes.

* * *

* * *

'Q. Now, what part of the highway were you on up until the impact took place? A. South lane.

'Q. And you weren't off onto the gavel shoulder of the road, at any time? A. No.

* * *

* * *

'Q. Would you be able to say which way James Pachl was facing at the time the car struck him? A. Well that would be hard to say. I seen him in the air and he might have--I couldn't say which way he was.

'Q. You don't remember of seeing him facing you or anything about that? A. He seemed to be twisting like he would land like a broad jump or something. You always land, lots of times turning the other way.

'Q. Just seemed to be twisting? A. Yes.'

Dorothy Officer, the wife of George was sitting on the right-hand side on the front seat. She describes the accident as follows:

'Q. And would you tell the jury in your own words what happened and about where it happened and the time it happened? A. Well, it was getting dark and it was approximately eight or nine miles from Grand Forks and the first I seen was this boy that just leaped right directly in our path.

'Q. Did your car strike that boy? A. Yes, it did.

'Q. And do you know about what part of your car struck him? A. Well, it would be the side where I was sitting more.

* * *

* * *

'Q. Now, can you tell the jury about how far James was from the front of your car when you first saw him? A. Well, he was right there when I saw him.

'Q. And were you looking forward at that time and immediately prior thereto? A. Yes, I believe I was.

'Q. Would you be able to say how far in front? A. Well, he was, I would say--he would be in the air when I saw him.

'Q. And did you notice what George did about that time? A. Well he applied brakes immediately.

'Q. And did the impact take place sometime after the brakes had been applied or---- A. No, I would say almost simultaneously.

'Q. And in what way did you first see this man coming or in front of you? Can you say which way he was going? A. Well he was going south, directly across the road.

'Q. And can you tell from what you saw how he was travelling, whether he was walking or---- A. No, he was coming at a fast speed. It seemed like he just made a leap thinking maybe he would make it or----

'Q. So he was running? A. Yes.

'Q. Now, do you know where your car was when the impact took place with reference to its position on the highway? A. Well, we were in the south lane of traffic.

'Q. And did anything happen after the impact? A. Well, I couldn't just say. We could have----

'Q. To the car. A. Well, from the impact there was a swerve.

'Q. And what else happened. Anything fly up? A. The hood flew up.

'Q. And what did George do with reference to the car? Did he continue on or bring it to a stop? A. He brought it to a direct stop.

'Q. Did you notice what happened to James Pachl right after the impact? Do you recall? A. Well, sitting on the right hand side as I was, he just seemed to land directly down beside the pavement.

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