Spielman v. Weber, 8029

• Decision Date: 27 November 1962
• Docket Number: No. 8029,8029
• Citation: 118 N.W.2d 727
• Parties: Raymond J. SPIELMAN, Plaintiff and Respondent. v. John M. WEBER, Defendant and Appellant.
• Court: North Dakota Supreme Court

Page 727

118 N.W.2d 727

Raymond J. SPIELMAN, Plaintiff and Respondent. v. John M. WEBER, Defendant and Appellant.

No. 8029.

Supreme Court of North Dakota.

Nov. 27, 1962.

Rehearing Denied Jan. 10, 1963.

Syllabus by the Court

1. On appeal from a judgment in an action tried without a jury, where appellant demands a trial de novo, the appellate court tries the case anew, giving appreciable weight to the findings of the trial court.

2. In applying the principle that, in reviewing a case tried without a jury, appreciable weight will be given to findings of the trial court, this court will not avoid its lawful duty of trying anew questions of fact in the entire case.

3. One who travels upon a public highway has the right to assume that such highway will not be obstructed unlawfully, or in such a manner as to cause injury to him while he himself is in the exercise of reasonable care.

4. While North Dakota statutes provide that all vehicles operating on the public highways of the State shall be driven on the right half of such highways, that requirement does not apply to highway vehicles or equipment 'while actually engaged in work upon the surface of a highway.'

5. Where the operator of highway equipment actually engaged in work upon the surface of the highway is lawfully obstructing a portion of such highway, such operator has the right to expect other drivers on the highway to use reasonable care to avoid danger because of such lawful obstruction of the road.

6. Motorist confronted with an emergency, not of his own making, who is required to make an instant decision, is not guilty of negligence if he fails to make the wisest choice. But where such emergency is caused in part by such motorist's own acts, he cannot claim the benefit of the emergency rule.

7. On trial de novo in the Supreme Court, where the evidence is such that the appellate court is clearly of the opinion that the lower court was mistaken in its decision, the judgment will be reversed. Trial court's findings are entitled to only such weight as the appellate court, in good conscience, feels they should receive.

Zuger, Zuger & Bucklin, Bismarck, for defendant and appellant.

Gallagher & Hodny, Mandan, for plaintiff and respondent.

STRUTZ, Judge.

This is an action to recover damages for personal injuries to the plaintiff and for damages to the plaintiff's pickup truck which he was driving when he collided with a snowplow operated by the defendant.

The collision occurred in daylight at a time when visibility was excellent, on U. S. Highway No. 83 at a point approximately ten miles north of the city of Bismarck. At the time of the collision, the defendant was operating the truck of a snowplow in a northerly direction on such highway. A Mr. Roberts was with the defendant, raising and lowering the plow blade as occasion required. At the same time, the plaintiff was operating his pickup truck in a southerly direction on said highway, driving toward the city of Bismarck.

Approaching the point of impact from the south, the road goes over a small hill, dips slightly, and then begins a long rise to the north, curving to the northwest just beyond the point of impact. Where such curve occurs in the highway, there is a hill to the west which restricts visibility ahead. The point of impact was just south of this curve.

On the day of the accident, the plaintiff left his home in Underwood, at approximately seven o'clock in the morning, to attend a mechanics' school in Bismarck which was scheduled for eight o'clock. As the plaintiff was proceeding toward the point of impact, he approached the curve in the highway. It is not clear at just what distance he sighted the defendant's snowplow. In a deposition taken before trial, the plaintiff testified that he had seen the snowplow when it was a distance of 900 feet ahead of him on the highway. At the trial, however, he testified that he first saw the snowplow when it was 600 feet away. The defendant and the operator of his plow testified that they saw the plaintiff approaching at a distance of approximately 900 to 1,000 feet. The highway patrolman testified that the curve is an unfolding curve and that an approaching vehicle can be seen, as one rounds the curve, at a distance of approximately 800 feet ahead. At the point of impact, the paved portion of the highway was thirty-four feet wide, with shoulders four feet wide on either side of the highway.

Snow had fallen during the night, and a light wind had blown the highway clear of snow except for certain portions of the west lane. In protected areas, the snow at some points was several inches deep, but all of it was on the west portion of the west traffic lane of the highway. As the defendant proceeded northward, he plowed the snow from the west portion of the highway wherever it lay on the surface. This made it necessary for the defendant to proceed on the west, or wrong, side of the road and in the lane of traffic occupied by oncoming vehicles.

The record further discloses that the defendant's snow-removal equipment had a maximum width of nine feet and that, as the defendant was removing snow from the highway, the left wheels of such equipment were being operated on the left, or west, shoulder of the road.

The plaintiff first saw the defendant at a minimum distance of 600 feet. He was attracted by the headlights and the blue blinking warning light on top of the equipment, and he knew that it was some sort of highway equipment. The plaintiff admitted that he knew that, at times, highway equipment is used on the left side of the road.

Plaintiff testified that, when he first saw the defendant's equipment, he was driving 'approximately 35 miles as hour.' Other testimony in the record would indicate that plaintiff might have been traveling at a greater rate of speed. He removed his foot from the accelerator, but at no time did he apply his brakes. He became certain of the fact that such equipment was working in his lane of traffic when the vehicles had approached each other to a point where they were separated by about 200 feet. The plaintiff testified that, at that point, he still was traveling at the same rate of speed as when he first saw the defendant:

'Q. Now, about what speed were you going when you were 200 feet from the plow?

'A. At approximately 35 miles an hour.'

Plaintiff also testified that, at that time, when he had reached a point 200 feet from the defendant's equipment, although a Coca Cola truck was approaching from the south, some distance behind the snowplow, the east lane of the highway was clear. Asked whether the east traffic lane of the highway was clear when he reached a point 200 feet from the snowplow, the plaintiff testified:

'A. The road was clear, yes.

'Q. Pardon?

'A. Yes, it was clear.

'Q. The east lane.

'A. Yes.'

When the vehicles were approximately seventy-five feet from each other, the plaintiff turned right and drove off the highway. At approximately the same moment, the defendant attempted to avoid the plaintiff by turning off the highway to his left, and a collision occurred off the paved portion of the road on the west shoulder.

On these facts, the plaintiff demands judgment against the defendant for injuries which he sustained. The defendant, on the other hand, denies negligence and contends that, in any event, the plaintiff was guilty of contributory negligence, barring recovery.

The trial court found for the plaintiff on the theory that the defendant was negligent in operating his snow-removal equipment on the left side while approaching a curve in the highway; that the plaintiff's failure to use his brakes was not the proximate cause of the...