Pederson v. O'Rourke
| Citation | 209 N.W. 798,54 N.D. 428 |
| Decision Date | 30 June 1926 |
| Court | United States State Supreme Court of North Dakota |
Rehearing denied July 19, 1926.
Appeal from the District Court of Ward County, Lowe, J.
Action for damages for negligence. From an order for judgment for the defendant notwithstanding the verdict and from the judgment entered thereon, plaintiff appeals.
Reversed.
McGee & Goss, for appellant.
"In the absence of a statute or ordinance regulating the matter it is a general rule that the vehicle entering an intersection of streets first is entitled to the right of way, and it is the duty of the driver of another vehicle approaching the crossing to proceed with sufficient care to permit the exercise of such right without danger of collision." 21 A.L.R. 974.
"The term 'intersection of a street or public highway' in a statute giving the right of way to a vehicle approaching from the right at such place means the space of the street or highway common to both streets or highways." Newmann v. Apter, 21 A.L.R. 970.
Palda & Aaker, and C. E. Brace, for respondent.
Rupp v. Keebler, 175 Ill.App. 619.
"It is the duty of the driver of an automobile who is proceeding towards an intersecting street to see and avoid colliding with another driver who first enters upon the intersection of the two streets and where he fails to do so he is guilty of negligence." Yuill v. Berryman, 94 Wash. 458 162 P. 513, 15 N.C. C. A. 465.
Plaintiff M. N. Pederson brought this action to recover the amount paid by him for hospital and medical expenses incurred on behalf of his minor son LeVerne who was seriously injured in a collision with an automobile driven by the daughter of the defendant. The defendant, contesting the claim of the plaintiff, denied that there was any negligence on the part of his daughter, and further pleaded contributory negligence on the part of the injured boy. The case was tried to a jury. The issues of negligence and contributory negligence were submitted to the jury by the trial court. Plaintiff had a verdict and defendant moved for judgment notwithstanding the verdict. The motion was granted on the ground that plaintiff's son was guilty of contributory negligence. Judgment was accordingly entered for the defendant. This appeal is from such judgment and from the order granting the defendant's motion.
The only question for determination here is as to the propriety of the court's order granting the defendant's motion for judgment notwithstanding the verdict. The answer depends upon whether it is possible to say as a matter of law that the boy was guilty of contributory negligence. See Sheffield v. Stone, O. W. Co. 49 N.D. 142, 190 N.W. 315.
Generally, the question of negligence is for the jury unless on the whole record reasonable men in the exercise of reason and judgment can draw but one inference therefrom. Miller v. Minneapolis, St. P. & S. Ste. M. R. Co. 50 N.D. 206, 195 N.W. 33. So in testing the correctness of the trial court's ruling on the motion in the instant case we must adopt that view of the testimony most favorable to the plaintiff. Read in this light we think that the record will sustain the following construction:
The accident, out of which this suit arose, occurred on the intersection of two streets in the city of Minot. These streets are Eighth street, running north and south, and First avenue, running east and west. The streets are paved. First avenue is thirty feet wide from curb to curb and Eighth street twenty-six feet. On September 13, 1924, a bright clear day, the plaintiff's minor son was riding on a motor cycle northward on Eighth street. He rode on the right side of the street about eight or ten feet from the curb. He was going at the rate of six or seven or eight miles per hour. As he approached the intersection with First avenue, and when he was about fifty feet from the line of intersection, he looked to the right. His view was somewhat obstructed by a residence but he was able to see three-quarters of the way east along First avenue--about 215 feet from the line of intersection with Eighth street. There was then no car on First avenue, so far as he could see. He continued on his way. Again as he crossed the line of intersection with First avenue he looked to the right and again he saw no car, so he proceeded across the intersection at the same rate of speed as before. He did not look to the right again until just before the accident. There is a manhole covered with an iron lid in the streets at the center of the intersection. It is important only as it aids in fixing the spot where the accident occurred. When the boy had gone about fifteen feet into the intersection he saw an automobile driven by the defendant's daughter approaching from the right. This car was approaching along the center line of the street at a speed of from twenty-five to thirty-five miles per hour. Immediately after he saw it it struck him. He was then a little northeast of the manhole. It threw him and the motor cycle to the northwest and passed by on the south of him. The car continued on for some seventy or eighty feet until it ran off the street over the eight inch curb, broke down an iron lamp post eight inches in diameter, and ran up on the lawn of a residence where it was finally stopped. The defendant's daughter driving the car did not see the boy until just before the car struck him. She was looking to the right to observe whether any cars were approaching from the north on Eighth street. The ordinance of the city of Minot regulating the use of streets in effect at the time of the accident provided: "On approaching intersections of streets and avenues, the vehicle on the right shall have the right of way."
It is the defendant's contention that the...
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