Serbousek v. Stockman Motors, Inc.

• Decision Date: 12 December 1960
• Docket Number: No. 7903,7903
• Citation: 106 N.W.2d 879
• Parties: Patricia SERBOUSEK, for the use and benefit of herself and Douglas James Serbousek and Rodney Alan Serbousek, minors, Plaintiff and Respondent, v. STOCKMAN MOTORS, INC., a North Dakota corporation, and George Atol, Defendants and Appellants.
• Court: North Dakota Supreme Court

Page 879

106 N.W.2d 879

Patricia SERBOUSEK, for the use and benefit of herself and Douglas James Serbousek and Rodney Alan Serbousek minors, Plaintiff and Respondent, v. STOCKMAN MOTORS, INC., a North Dakota corporation, and George Atol, Defendants and Appellants.

No. 7903.

Supreme Court of North Dakota.

Dec. 12, 1960.

Rehearing Denied Jan. 9, 1961.

Syllabus by the Court.

1. Negligence, whether contributory or primary, is a question of fact to be determined by the jury unless the evidence is such that reasonable minds can draw but one conclusion therefrom.

2. In reviewing evidence to determine whether it is sufficient to sustain a verdict of the jury we consider it in the light most favorable to the verdict.

3. North Dakota has no statutory 'rule of safety.' The formulation, adoption and application of the rule depends upon our court decisions.

4. Where expert witnesses in a motor vehicle accident case are permitted to express opinions bearing upon speed, which are based on testimony of other witnesses with respect to such matters as length of skidmarks, comparative weights of the vehicles involved, and the distance that the vehicles moved after impact, the weight to be given to this evidence is a matter for the jury to determine under the physical facts, the circumstances and other evidence in the case.

5. Under the evidence in this case and the instructions of the court, the jury might take into consideration the rebuttable presumption that because of the instinct of self-preservation one who has suffered death by accident was at the time of injury exercising due care for his own safety.

6. The evidence is examined and it is held that whether the deceased was guilty of negligence that contributed proximately to the accident and consequently to his death is a question of fact upon which the minds of reasonable men may differ and is, therefore, a question for the jury and not one that we may determine as a matter of law.

Davidson & Whisenand, Williston, and Conmy, Donahue & Conmy, Bismarck, for plaintiff and respondent.

Bjella, Jestrab, Neff & Pippin, Williston, for defendants and appellants.

MORRIS, Judge.

The plaintiff brought this action for the use and benefit of herself and her two minor children to recover damages arising from the alleged wrongful death of her husband, Rodney A. Serbousek, which she claims was caused by the negligence of the defendant George Atol, the agent of the defendant Stockman Motors, Inc. The death resulted from a motor vehicle accident that took place February 7, 1959 at about ten o'clock p. m. on U. S. Highway No. 2 at a point in Williams County approximately 2.2 miles east of the city of Ray.

As defenses to the plaintiff's action the defendants deny negligence on the part of Atol and allege that the accident which resulted in the death of Rodney A. Serbousek was caused solely and proximately by his own negligence or that in any event his negligence contributed proximately thereto. Atol also counterclaimed for damages resulting from personal injuries he received in the accident and Stockman Motors, Inc. counterclaimed for damages to its truck which was being driven by Atol at the time the accident occurred. The case was tried to a jury which rendered a verdict for substantial damages in favor of the plaintiff upon which judgment was entered against both defendants. The defendants made a motion for a judgment notwithstanding the verdict, which was denied. They appeal from both the judgment and from the order of the trial court denying the motion for judgment notwithstanding the verdict.

There are no challenges to the instructions of the court or rulings on the admission of evidence. The only issues on this appeal are the sufficiency of the evidence to sustain the verdict with respect to the negligence of the defendant George Atol and the contributory negligence of the deceased. We have repeatedly stated that negligence, whether contributory or primary, is a question of fact for the jury unless the evidence is such that reasonable minds can draw but one conclusion therefrom. Olson v. Cass County Electric Co-operative, Inc., N.D., 94 N.W.2d 506. In reviewing the evidence we consider it in the light most favorable to the verdict. Leonard v. North Dakota Co-op. Wool Marketing Association, 72 N.D. 310, 6 N.W.2d 576; Stadick v. Olson's Hardware, N.D., 64 N.W.2d 362; Geier v. Tjaden, N.D., 74 N.W.2d 361; Quam v. Wengert, N.D., 86 N.W.2d 741; Doll v. Treiber, N.D., 76 N.W.2d 910.

On February 7, 1959 George Atol was in the employ of Stockman Motors, Inc. of Williston, North Dakota. For some time he had been night driver of a truck owned by his employer with which he performed wrecker and towing service. At about nine o'clock in the evening he was requested by a state highway patrolman to pick up a vehicle along U.S. Highway No. 2 near Ray, North Dakota. This vehicle was a disabled Plymouth automobile standing on the shoulder of the highway facing west. After receiving the call, Atol secured the assistance of McLean, a fellow employee. Both men left the place of business of Stockman Motors, Inc. shortly after nine o'clock and drove to where they saw the disabled Plymouth car. The time was then about ten o'clock. They were driving east and proceeded a short distance beyond the disabled car to where there was a graded approach to the highway which led into a field immediately to the north. Atol was driving. He turned to the left across the north or westbound lane of the highway and part way into the approach, where he stopped, shifted gears and started to back up his vehicle. His companion, McLean, uttered a warning exclamation which caused Atol to put on his brakes and stop. McLean testified that before he had Atol made the turn to the left across the highway the witness looked to the east, in which direction he had a clear view of eight-tenths of a mile, and saw no lights that he could recollect. The record then shows the following cross-examination:

'And then as I understand it, after the truck was turned so that it was headed north and just as you started to back up, not before, but just as you started, you did look to the east again, is that right? A. Yes, sir.

'Q. And at that time you did see the light of the car and you hollered, 'George'? A. Yes, sir.

'Q. And he immediately stopped his truck? A. Yes, sir.

'Q. And in the instant following the stopping of the truck you thought this car would go around you, didn't you? A. Well, as it gets closer it looks like it is going by.

'Q. If you thought it was going by you thought your truck was pretty well clear of the highway, did you not? A. No, sir, I didn't know for sure it was, it just looked like it was going by.

'Q. As a matter of fact, when you saw it it was just an instant before the impact, wasn't it? A. It seemed like that, yes, sir.

'Q. A matter of a split second? A. It was awfully fast.

'Q. I believe you described it before, just a flash of light, then the impact? A. Yes, sir. * * *

'Q. You know and will concede as a sane matter of fact, would you not, Mr. McLean, that had you looked before you started to back up that car was necessarily in sight? A. I suppose it was, I do not know.

'Q. And what occurred really was you started to back up and there was the car right upon you, isn't that true? A. I would say it was not right upon us, I do not know how far off it was.

'Q. In all events you backed up right into its path did you not? A. I would say no.

'Q. Well, you know its proper path was in the westbound or north lane of the highway? A. It was in that lane, yes, sir.

'Q. You know now from the facts you learned afterwards that it remained in its proper lane? A. Yes, sir.

'Q. So will you not concede you backed up right in front of its path? * * * A. We backed into its path, not right into it.'

The truck that Atol was driving had two axles with dual wheels on the rear axle. It was equipped as a wrecker, was about 18 1/2 feet long, with the cab over the engine. The traveled portion of the highway was blacktop about 24 feet wide and was clear of snow. The adjacent shoulders of the highway and the fields on either side were snow-covered. The truck was equipped with two headlights, two taillights, two clearance lights on each side of the cab, and also had a blinker light on top which shone to the front and to the back but did not revolve. The blinker light was separately controlled by a toggle switch on the dashboard. Atol and McLean testified that Atol turned on the blinker light which was located on top of the cab when he turned on the light signaling the left turn into the approach. When the first car arrived at the scene a few minutes after the accident the blinker light was not operating. It was switched on shortly after arrival at the suggestion of one of the men in that car, and when switched on the blinker light operated. Atol testified that when he made the left turn he did not go far into the approach on account of snow, that the front end of the wrecker extended five or six feet into the approach, and that the rear portion of the wrecker blocked all or most of the westbound traffic lane.

From where Atol was seated in the cab he had a clear view along the highway to the east a distance of seven-eighths of a mile. According to his testimony after he turned to the left into the approach he stopped, shifted gears, looked and backed up, and that when McLean 'hollered there was a light I stepped on the brake.' In about a second the impact took place.

With respect to the position of the wrecker, we quote from Atol's testimony:

'Q. You mean you stopped in the first place blocking the entire westbound lane? A. Yes.

'Q. And then you backed up and you blocked part of the other lane, is that right? A. We blocked part of the other lane to start with, I suppose.

'Q. You are telling us now that in attempting to make this turn around you were attempting to make it without even driving out any distance into this...