Schaller v. Bjornstad
| Decision Date | 01 December 1949 |
| Docket Number | 7118. |
| Citation | 40 N.W.2d 59,77 N.D. 51 |
| Court | North Dakota Supreme Court |
Syllabus by the Court.
1. The laws of North Dakota make it the duty of any person driving a vehicle on a highway to 'drive the same at a careful and prudent speed not greater than is reasonable and proper having due regard to the traffic, surface, and width of the highway and any other conditions then existing.' No person has the right to 'drive any vehicle upon a highway at a speed to endanger the life, limb, or property of any person.' NDRC 1943, Sec. 39-0901.
2. Ordinarily the propriety of any rate of speed cannot be fixed by any definite number of miles per hour,
but what is a reasonable speed is dependent largely upon the situation and surrounding circumstances.
3. The driver of a motor vehicle whose vision is obscured by atmospheric conditions such as fog or rain must exercise care commensurate with the situation.
4. A person driving a motor vehicle at night and finding himself blinded by a glare of light is bound to exercise care commensurate with the situation to avoid inflicting injury on others who may be using the street or highway while he is thus unable to see what is before him.
5. In the instant case the driver of an automobile which did not have a lighted tail light, stopped such automobile after dark near the edge of the highway so that the car was standing largely upon the paved and traveled portion of the highway. The driver of a truck approaching from the rear collided with the automobile and both vehicles were damaged. It is held for reasons stated in the opinion that under the facts as disclosed by the testimony, the physical facts and the circumstances, the driver of the car and the driver of the truck were both negligent and that the concurrence of the negligent acts of both drivers caused the collision.
F. J Graham and D. R. Crabtree, both of Ellendale, for appellant.
T. L. Brouillard, Ellendale (Nels G. Johnson, Bismarck on oral argument), for respondents.
This is an action for the recovery of damages resulting from a collision between an automobile owned and driven by the plaintiff and a truck owned by the defendant Bjornstad and driven by the defendant Erlandson. The complaint alleges that the collision was caused by the negligence of the defendant Erlandson the driver of the truck and that as a result thereof plaintiff sustained certain personal injuries and that the automobile was damaged, all to the damage of the plaintiff in the sum of $941.50. The defendants interposed an answer and counterclaim. In their answer they admit the collision, that the defendant Bjornstad was the owner of the truck and that the defendant Erlandson was operating the truck as an employee of the defendant Bjornstad at the time the collision occurred. They allege that the collision was caused by the negligence of the plaintiff; that at the time of the collision plaintiff's automobile was standing on the traveled portion of the highway and that there were no lights thereon either at the front or at the rear. They further allege by way of counterclaim that the truck was damaged to the extent of $1200 and they ask judgment that plaintiff's action be dismissed and that the defendant Bjornstad recover from the plaintiff $1200 for the damage to the truck. The plaintiff interposed a reply denying all the allegations of the counterclaim, except the allegations that the defendant Bjornstad was the owner of the truck and that the plaintiff was the owner of the automobile. The parties waived a trial by jury and the case was tried to the court without a jury. The court made findings in favor of the defendants and ordered judgment in favor of the defendant Bjornstad for $800. Judgment was entered accordingly and the plaintiff has appealed and demands a trial anew in this court.
The collision occurred on State Highway No. 281 about three miles north of the City of Ellendale about 7:30 P.M. on October 24, 1947. The plaintiff was driving a 1942 five-passenger Studebaker automobile. His wife was a passenger. Plaintiff was driving in a southerly direction toward the City of Ellendale. Plaintiff and his wife both testified that they left plaintiff's brother's farm some eleven miles north of Ellendale a little after 7 o'clock that evening, and that when they left plaintiff's brother's farm the front lights and the tail light on the automobile were in working condition and in operation.
Plaintiff testified that as he approached the place where the collision occurred his car started 'spitting and sputtering.' He said, 'I pulled off to the curb and I was going to pull the bowl off and take the water out of it.' Later he explained that there was no curb on the highway in the sense that there was 'something that stuck up.' He testified that the highway was blacktopped and something like thirty or thirty-two feet in width, that it was constructed with sloping shoulders and sloping ditches and that it would be possible to drive 'down off the highway at practically any point.' He testified that he stopped the car on the blacktop, the traveled portion of the highway; that he did not see the lights of the vehicle approaching from the rear until after he had stopped his car and was just going to get out when his wife said don't get out 'wait until they get by.' And so he did not get out of the car but waited for the vehicle approaching from the rear to pass. That the lights on his car were on and operating at the time. The plaintiff further testified that he also noticed the lights of another car approaching from the south, that the lights on this car were dimmed, and that he (the plaintiff) also dimmed the lights on his car. Plaintiff testified that it had rained that afternoon and that it was cloudy that evening but that it did not rain at any time while they were driving home and that he had not been using the windshield wipers. Plaintiff testified that the truck struck the automobile straight from the rear, 'pretty near directly in the back.' That the impact shoved plaintiff's car about seventy-five feet. That the car before the collision was reasonably worth $1200 and that as a result of the collision it was reduced in value so that it was worth not to exceed $600. Plaintiff testified:
There was no further evidence as to the damage inflicted upon the automobile or detail as to the particular parts of the automobile that had been damaged.
Plaintiff's wife, Magdalene Schaller, testified that when they left plaintiff's brother's farm shortly after seven o'clock that evening both the front lights and the tail light on the car were working and in operation. That it was cloudy but that there was no rain or mist. That as they were approaching the point where the collision occurred there seemed to be comething the matter with the motor and her husband stopped the car. She said: 'He stopped way over to the side,' clear over to the west side. Magdalene Schaller further testified that the truck 'struck the car about the center of the back.' She stated that the lights on plaintiff's car were on at this time, that she didn't 'know about the rear because we wasn't out of the car but the front ones were I know' and that the rear light was working at the time they left the plaintiff's brother's farm that evening.
Erlandson was called by the plaintiff for cross examination under the statute. Later he was called as a witness in his own behalf. On such cross examination he testified that at the time the collision occurred he was working for the defendant, Harry Bjornstad, moving buildings, that he was driving a truck belonging to Bjornstad and that such truck 'ran into' the car belonging to the plaintiff Schaller. He testified that the ground and the road were level, where the collision occurred; that he did not know 'just in feet' how wide the road was but that 'it is plenty wide enough.' In answer to the question, 'What rate of speed were you driving when you run into him, about?' he said, 'I should judge about thirty miles an hour.' He testified that the lights and brakes on the truck were in good working condition. That shortly before the collision he noticed the lights of a car approaching from the south. When asked how far he was away from plaintiff's car when he first saw it he said, When asked if he meant seventy-five or one hundred feet he answered, He was then asked to give his best judgment. He answered, He testified that this car passed him at a point north of plaintiff's car. That he (Erlandson) dimmed the lights on the truck when he was some three or four hundred feet or more from the car that approched him from the south, that the driver of the car from the south did not dim his lights, that after the car which approached from the south had passed he (Erlandson) turned his lights back on high and that he then noticed the plaintiff's car. That he made an effort to turn out after he saw the Schaller car but that he struck the left rear corner of the Schaller car with the...
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