Sheffield v. Stone, Ordean, Wells Company, a Corp.
| Decision Date | 26 October 1922 |
| Citation | 190 N.W. 315,49 N.D. 142 |
| Court | North Dakota Supreme Court |
From a judgment of the District Court of Cass County, Englert, J defendant appeals.
Affirmed.
Divet Holt, Frame N Thorp, for appellant.
"When a motorist is approaching a known dangerous situation, he is required to have his machine sufficiently under control to enable him to avoid a collision, and failing in this, he is guilty of negligence as a matter of law." Berry Automobiles, §§ 127-139, p. 417; Dempke v Guinig (Wash.) 114 P. 436.
"The plaintiff was denied recovery where the evidence showed that in approaching the crossing in question, he did not have his car under control, and was not prepared to stop immediately if danger threatened; and this was held to be the case even if it appeared that the defendant was negligent in not having his car under control, in not sounding the horn, and in not making proper observations ahead." Berry, Automobiles, 3d ed. § 813; Gray v. Fox, 69 Pa. S.Ct. 218.
"At street intersections motorists must exercise reasonable care to avoid collisions." Berry, Automobiles, 3d ed. § 812; MaChing v. Co. (Pa.) 97 A. 694.
The respondent, having entered the intersection of these streets first, was clearly entitled to the right of way. It was the duty, therefore, of the appellant, to have stopped his car, or so slackened his speed that there would have been no collision. Hill v. Co. (Wash.) 186 P. 322 and citations.
If plaintiff was going so fast when fifteen feet from the truck entering the street, that he could not comply with this rule, he was legally in the wrong and guilty of negligence as a matter of law. John v. Payntor (Wash.) 170 P. 132; Simon v. Lit Bros. (Penn.) 107 A. 635; Mayer v. Melletee (Ind.) 114 N.E. 241; Taylor & Co. v. Harding (Ky.) 206 S.W. 284.
"It is the duty of the driver of an automobile, when approaching a street crossing, to have his car under such control that he may stop it so as to avoid an accident." Healy v. Shedaker (Penn.) 107 A. 842.
"It is the duty of an automobile driver, traveling on a busy street of a large city, and especially when about to cross another much used street, to slow down his car to such an extent as to have control of same and to stop it if made necessary in meeting another car at such crossing." Mitchell v. Brown (Mo.) 190 S.W. 354; Huddy, § 127.
Lawrence, Murphy & Nilles, for respondent.
If by any reasonable theory deducible from the facts, the jury could have found that the truck driver had the last clear chance to avoid the injury, the mere fact that the plaintiff may have been guilty of contributory negligence as a matter of law would not bar a recovery. Actum v. Street R. Co. 20 N.D. 434, 129 N.W. 225; Welch v. Street R. Co. 24 N.D. 463, 140 N.W. 680.
Plaintiff recovered judgment against defendant for damages to his person and property. Defendant moved for judgment notwithstanding the verdict. The motion was denied and defendant has appealed.
The only error assigned is the ruling on the motion for judgment notwithstanding the verdict. Defendant specifically states that a new trial is not desired and that he waives all right thereto.
The question so presented, namely, under what circumstances judgment notwithstanding the verdict may be ordered, has been considered by this court in many cases. See, Meehan v. Great Northern R. Co. 13 N.D. 432, 442, 101 N.W. 183; Kerr v. Anderson, 16 N.D. 36, 111 N.W. 614; Aetna Indemnity Co. v. Schroeder, 12 N.D. 110, 95 N.W. 436; Rieck v. Daigle, 17 N.D. 365, 117 N.W. 346; First State Bank v. Kelly, 30 N.D. 84, 152 N.W. 125, Ann. Cas. 1917D, 1044; Dubs v. Northern P. R. Co. 42 N.D. 124, 171 N.W. 888. The rule established by these authorities is that judgment notwithstanding the verdict may be ordered only in a case where it clearly appears from the whole record that the party who moves for such judgment is entitled to a judgment on the merits as a matter of law.
The damages sought to be recovered in this action were caused by a collision between a truck operated by an employee of the defendant and a Ford sedan driven by the plaintiff. The collision occurred about noon, Nov. 8, 1921, directly in front of a blind alley leading into Sixth street south in the city of Fargo. Sixth street south is an extension of Broadway and is one of the main thoroughfares of the city. The street runs north and south and is bisected by Front street, that part of the street lying north of Front street being called Broadway and that part of the street lying south of Front street being called Sixth street south. The blind alley in question intersects the west side of Sixth street immediately north of the Fargo Auditorium. The alley is 20 feet in width and at the point where it enters the west side of Sixth street it is covered by a sidewalk with a heavy brick and concrete wall on the north side, heavy concrete pillars on the south and other concrete posts at or near the entrance.
About 8 o'clock in the morning of Nov. 8, 1921, the plaintiff parked his car in the parking zone in the middle of Broadway in the block lying immediately south of Front street. The car remained where it was so parked until noon when the plaintiff entered it for the purpose of driving to his home. The plaintiff was accompanied by one Miss Harrington. The natural, usual, and shortest route for the plaintiff to travel to his home would be to go down Broadway in a southerly direction, across Front street and continue down Sixth street south in a southerly direction, and this is the route which he followed. It was a cold day and there was no snow on the pavement. The motor was cold and when the plaintiff started to drive some of the cylinders were missing. When the plaintiff reached Front street, that is after he had traveled a distance of about one-half block, he was interrupted by the eastbound traffic so that he was compelled to stop his car completely, although the motor kept running. Immediately south of Front street, Sixth street south runs down an incline (the evidence, however, does not disclose the percentage of the grade). The accident occurred at a point about 140 and not to exceed 160 feet from the point where plaintiff had stopped his car on the north side of Front street.
The evidence shows that after the traffic had passed so as to enable plaintiff to proceed, he crossed Front street and traveled in a southerly direction down Sixth street south,--on the west side of said street. The car was in low gear for the first 70 feet and in high gear the last 70 feet. According to the testimony of the plaintiff, however, the speed of the car was not greatly increased interim the shifting into high gear and the collision. When the plaintiff reached a point about 15 or 20 feet from the mouth of the alley, he noticed the truck coming out. Sixth street at this point is 45 feet in width with a parking zone 20 feet in width running down the center of the street, leaving a space of 12 feet 6 inches on each side of the parking zone for driving purposes. The undisputed evidence is to the effect that the truck...
To continue reading
Request your trial