Schuh v. Allery, 8882

• Decision Date: 13 August 1973
• Docket Number: No. 8882,8882
• Citation: 210 N.W.2d 96
• Parties: Richard SCHUH and Carol Schuh, Husband and Wife, Individually and as Trustees for the North Dakota Workmen's Compensation Bureau, Plaintiffs and Appellants, v. Louis ALLERY, Deceased, by and through his Administratrix, Ermaline P. Allery, Defendant and Respondent. Civ.
• Court: North Dakota Supreme Court

Page 96

210 N.W.2d 96

Richard SCHUH and Carol Schuh, Husband and Wife Individually and as Trustees for the North Dakota Workmen's Compensation Bureau Plaintiffs and Appellants, v. Louis ALLERY, Deceased, by and through his Administratrix Ermaline P. Allery, Defendant and Respondent.

Civ. No. 8882.

Supreme Court of North Dakota.

Aug. 13, 1973.

Syllabus by the Court

1. A driver who has the directional right of way must still exercise due care, and failure to do so may be contributory negligence.

2. A driver of an automobile may be negligent if he fails to see an ojbect in plain view.

3. Findings of fact by a trial court will not be set aside unless clearly erroneous.

4. Exclusionary evidentiary rules are not applied as rigidly in trials to a court as in jury trials.

5. Failure to rule on admissibility of an exhibit, in a trial to the court, is not reversible error where the evidence is ample to sustain the judgment if the exhibit is not admitted.

6. In a nonjury case, evidence not clearly inadmissible should ordinarily be received.

E. J. Bosch, Minot, for plaintiffs and appellants.

Traynor & Rutten, Devils, Lake, Nilles, Hansen, Selbo, Magill & Davies, Fargo, and Ella Van Berkom, Minot, for defendant and respondent.

VOGEL, Justice.

This is an appeal from a judgment entered following trial to the court without a jury. A review of the facts discloses that the plaintiff Richard Schuh was driving his automobile in an easterly direction on a county dirt road, and that the defendant's decedent, Louis Allery, was driving south on a dirt section-line road. Neither road was a favored highway with stop or yield signs affecting traffic. The two vehicles collided near the center of the intersection of these two roads. It appears that neither of the parties saw the other until just before impact, because there were no skidmarks put down by either vehicle to indicate an attempt to avoid a collision. Allery died as a result of injuries which he received in the accident, while Schuh received serious injuries for which he seeks to recover in this action.

The Allery vehicle was followed by a vehicle driven by Allery's wife at a distance of approximately one car length. The plaintiff admits that he saw the vehicle which Mrs. Allery was operating, but asserts that he did not see the one which Allery was driving until just before the collision. There was vegetation growing on the side of the road which was fifteen to twenty inches in height, and, in addition, it appears that the road on which Allery was approaching the intersection was approximately three or four feet lower than the road on which the plaintiff was driving. Just before the lower road reaches the intersection, it rises to the level of the road on which the plaintiff was traveling. The evidence further discloses that the vehicle which Allery was driivng was a Chevrolet van seventy inches in height and it was painted a medium blue with white stripe. The plaintiff's car was approximately five feet in height.

The trial court, on the above evidence, found the drivers of both vehicles negligent and dismissed the plaintiffs' complaint. From the judgment entered, the plaintiffs have appealed to this court.

At the time of the occurrence of the events complained of, and at the time of the commencement and trial of this action, the North Dakota Legislature had not enacted a comparative negligence statute. Thus contributory negligence of a plaintiff driver, if established by the evidence, would be a bar to recover of damages for plaintiff's injuries. Krise v. Gillund, 184 N.W.2d 405 (N.D.1971).

The plaintiffs' brief set forth three issues which are presented for review in this court. Rule 28(a)(2), N.D.R.App.P. These issues are stated by the plaintiff as follows:

1. What does the directional right of way amount to in North Dakota?

2. Did the lower court consider or not consider a certain exhibit offered but admitted subject to the further ruling and consideration of objections made to its introduction by the plaintiff?

3. As a matter of law, the defense failed to carry the burden of proof regarding contributory negligence on the part of the plaintiff.

It will be noted that all three of these issues are quite closely related and go to the question of the plaintiff's contributory negligence.

Our law provides that when two vehicles approach or enter an intersection from different highways at approximately the same time, the driver of the vehicle on the left shall yield the right of way to the vehicle on the right. Sec. 39--10--22, subsec. 1, N.D.C.C.

The right of way of the favored vehicle is not absolute. If a vehicle on the left enters an intersection a sufficient interval ahead of the vehicle on the right to have ample time to clear the intersection safely before the vehicle approaching from the right enters, it is not negligence for the vehicle on the left to proceed. In the case before the court, it appears that Allery did enter the intersection first, because he had entered it when the was struck by the plaintiff. But Allery did not have time to safely clear the intersection before the plaintiff entered it, and thus he was clearly negligent, as the trial court found.

But the plaintiff's having the right of way did not absolve him of the necessity of exercising due care. Violation of the right of way is an issue for determination of the trier of fact, and is not a fact of itself. The mere fact that the plaintiff approached the intersection from the right of Allery is insufficient of itself to place the plaintiff within the provisions of the statutory right-of-way rule. Thompson v. Nettum, 163 N.W.2d 91 (N.D.1968). This we say, cognizant of an amendment of the statute subsequent to Thompson v. Nettum.

The evidence in this case discloses that the plaintff was operating an automobile which raised his eye level several feet above the surface of the road. There was some vegetation along the side of the road, estimated by some of the witnesses to be no higher than fifteen to...