Spenningsby v. Peterson

• Decision Date: 07 January 1955
• Docket Number: No. 7334,7334
• Citation: 67 N.W.2d 913
• Parties: C. A. SPENNINGSBY, sole trader doing business under the firm name and style of Valley Sales Company, Plaintiff and Respondent, v. Peter T. PETERSON, Earl K. Peterson and Clarence Peterson, co-partners doing business under the firm name and style of Bison Freight Lines, Defendants and Appellants.
• Court: North Dakota Supreme Court

Page 913

67 N.W.2d 913

C. A. SPENNINGSBY, sole trader doing business under the firm name and style of Valley Sales Company, Plaintiff and Respondent, v. Peter T. PETERSON, Earl K. Peterson and Clarence Peterson co-partners doing business under the firm name and style of Bison Freight Lines, Defendants and Appellants.

No. 7334.

Supreme Court of North Dakota.

Jan. 7, 1955.

Syllabus by the Court.

1. Specifications of error not argued orally or in a party's brief are deemed waived.

2. Questions of negligence and contributory negligence are questions of fact for the jury unless the evidence is such that reasonable men can draw but one conclusion therefrom.

3. Evidence of the violation of a statutory rule relating to safety on the highways is evidence of negligence.

4. Where defendants' employees left a disabled truck parked in the center of a busy highway although it was possible to back the truck down hill to a place of relative safety at the side of the road, a jury's finding that such act was negligent will not be disturbed.

5. In considering whether plaintiff's employee was guilty of contributory negligence as a matter of law, the evidence must be viewed in the light most favorable to him.

6. Where plaintiff's employee driving in a snow storm at a speed of 15 miles an hour encountered a sudden snow squall of increased density which reduced visibility to 9 or 10 feet, commenced reducing his speed immediately and suddenly came upon a truck parked in the middle of the highway at a distance of 9 or 10 feet ahead of him too late to avoid a collision although by that time he had reduced his speed to 8 or 9 miles an hour, the question of his contributory negligence was for the jury.

L. T. Sproul and Romen H. Fitzner, Valley City, for appellants.

Wm. L. Paulson, Valley City, and Philip L. Scherer, Winthrop, Minn., for respondent.

BURKE, Chief Justice.

In this action, plaintiff sought to recover property damages incurred in a collision between a tractor and semi-trailer driven by one of his employees and another tractor and semi-trailer which was in the control of an employee of the defendants. Upon a jury trial a verdict for the plaintiff was returned and judgment in accordance with the verdict was entered. Defendants have appealed from the judgment. There are several specifications of error but only one of these specifications is argued in the brief. That one is that the evidence is insufficient to sustain the verdict. The specifications not argued are deemed to be waived. Kennedy v. State Bank of Bowbells, 22 N.D. 69, 132 N.W. 657; Beauchamp v. Retail Merchants' Ass'n Mut. Fire Ins. Co., 38 N.D. 483, 165 N.W. 545.

Upon the question of the sufficiency of the evidence the contentions of the defendants are: 1, that there is no evidence of any actionable negligence upon the part of the defendants' employees, and 2, that the evidence establishes contributory negligence on the part of plaintiff's employee as a matter of law.

The collision occurred about two miles east of Valley City on a bitter March day. The temperature was zero and blizzard conditions prevailed. Maximum visibility was 75 to 100 feet but intermittent snow flurries of increased density at times reduced visibility to zero. Defendants' employee, driving a tractor and a fully loaded semi-trailer, had arrived at Oriska, eleven miles east of Valley City early in the morning. At Oriska, he waited awhile to see if the storm would abate. When he was satisfied that weather conditions had cleared sufficiently for him to proceed in safety, he set out for Valley City. He stated that it was impossible for him to guide his vehicle safely by viewing the road through his windshield. He opened the window of the cab and guided his tractor by watching the edge of the paving on the left-hand side of the road. To accomplish this it was necessary for him to drive practically in the center of the road. As he drove along his engine commenced to falter and at a time he was proceeding up a slight grade stopped altogether. Defendants' employee then set his brakes and put his transmission in first gear, thus securely anchoring his vehicle where it had stopped, approximately in the center of the road. Another employee of defendants who was driving a following vehicle of the same character, saw the parked vehicle in time to stop within five or six feet of it. This vehicle was being driven at a speed of five or six miles an hour. Defendants' two employees then attempted to start the engine of the disabled tractor. Failing in this, they left the vehicle unattended and proceeded towards Valley City. In the parked vehicle were flares and warning flags. These signals were not set out. While the parked vehicle could not proceed forward, it would have been possible for the driver to let it coast backward down hill and to guide it to a position at the side of the road. This, he did not do. Later another tractor-trailer combination belonging to Winston-Newell Company approached the parked vehicle from the east. Its driver stated, 'I was driving up grade at a speed of five or six miles an hour looking out the side window watching the black top and all at once the reflectors of the trailer shown back from the truck and I stopped, and here was the trailer right in front of me. I stopped...