State v. Yellow Cab Co.
| Decision Date | 04 October 1932 |
| Docket Number | 6073 |
| Court | North Dakota Supreme Court |
December 3, 1932
Appeal from the District Court of Burleigh County McFarland, J.
Affirmed.
Conmy Young & Conmy, for appellant.
Pedestrians though given the right of way over automobiles at crossings are not absolved from exercising due care. Clark v. Feldman, 57 N.D. 741, 224 N.W. 167.
Pedestrians running across the street elsewhere than on walk at intersection, apparently without looking for approaching busses, held contributorily negligent. Szekeres v. Detroit Motorbus Co. (Mich.) 232 N.W. 700; Moseley v. Mills (Wash.) 259 P. 715; Kalsow v. Grob, 237 N.W. 848, 61 N.D. 119; Salter v. Carlisle (Ala.) 90 So. 283; Gobes v. Cutting Larsen Co. 178 N.Y.S. 338; Deal v. Snyder (Mich.) 168 N.W. 974; Fulton v. Mohr (Mich.) 166 P. 851; Moss v. H.R. Boynton Co. (Cal.) 186 P. 631.
Plaintiff who was guilty of contributory negligence cannot rely upon the negligence of the defendant. Filson v. Balkins (Cal.) 268 P. 445; 1 Blashvield's Automobile Law, 688; Sommer v. Martin, 55 Cal.App. 603; Lewis v. Seattle Taxicab Co. 72 Wash. 320, 130 P. 341; Neville v. Postal Teleg. Cable Co. (La.) 126 So. 720; Myers v. Cassity, 272 S.W. 718; Crowl v. West Coast Steel Co., (Wash.) 186 P. 867; Sullivan v. Smith, 123 Md. 546, 91 A. 456; Askin v. Moulton, 149 Md. 140, 131 A. 82; Gitomir v. United R. Co., 157 Md. 464, 146 A. 279; Buckey v. White, 137 Md. 124, 111 A. 777; Stewart v. Olson (Wis.) 206 N.W. 910; Chiappone v. Greenbaum, 178 N.Y.S. 854; McCormick v. Hesser (N.J.) 71 A. 55; Weaver v. Pickering (Pa.) 123 A. 777; Dobrowolski v. Henderson (La.) 130 So. 239; Rhoads v. Herbert (Pa.) 148 A. 693; Pettijohn v. Weeds (Iowa) 227 N.W. 824; McKean v. Barker (R.I.) 148 A. 599; Joyce v. Englehart' (N.J.) 153 A. 97; Cumberland Grocery Co. v. Hewlett (Ky.) 22 S.W. 97; McLeod v. Kjos (Wash.) 274 P. 180; Bakkum v. Holder (Or.) 295 P. 1116; Martin Baking Co. v. Tompkinson (Ohio) 161 N.W. 289; Meade v. Saunders (Va.) 144 S.E. 711; Salsich v. Bunn, 238 N.W. 396; Brickell v. Trecker, 186 N.W. 593.
Thomas J. Burke, Assistant Attorney General, Charles L. Crum and Scott Cameron, for respondent.
A pedestrian about to cross a street or highway frequented by motor vehicles must use the same degree of caution and alertness that a reasonably careful man would use under like circumstances. 5 Huddy, Auto. 139.
One who crosses a street at a time when an automobile is approaching is not guilty of contributory negligence in failing continually to observe it, where the pedestrian crosses in ample time to avoid the automobile in safety. Brown v. Nelson, 271 P. 894; Knapp v. Barrett, 216 N.Y. 226, 110 N.E. 428; Harker v. Gruhl, 62 Ind.App. 177, 111 N.E. 457; Gerhard v. Ford Motor Co. 119 N.W. 904.
The rights of drivers of motor vehicles and of pedestrians in making use of the streets are equal and reciprocal; each must exercise due care. Quinn v. Heidman, 195 N.W. 774.
A pedestrian has a right to expect that persons operating automobiles upon a public street will operate them in a manner and at the speed customary at the particular place. Wing v. Kishi, 264 P. 483; Cox v. Reynolds (Mo.) 18 S.W.2d 575.
Contributory negligence cannot be predicated upon an omission to assume that another will violate the law. Moreno v. Los Angeles Transfer Co. 186 P. 801; Zimmerman v. Mednikoff, 162 N.W. 349.
On November 2, 1929, the Bismarck Dairy Company had paid into the Workmen's Compensation Fund of this State the amount of premiums and assessments determined by the bureau for the insurance of its employees, and John J. Brazerol was in its employ.
On that date Brazerol was injured in the course of such employment by reason of a collision with a car belonging to the defendant, and driven by an employee of the defendant.
Thereafter the Workmen's Compensation Bureau paid doctor's bills, hospital bills, and nurse bills for Brazerol amounting to $ 747.00, and became obligated to pay Brazerol future compensation because of the injuries which he had received, such payments being awarded to Brazerol because of his claim against the fund on the ground that he was an employee of the Bismarck Dairy Company insured in the compensation fund.
Plaintiff brings this action against the defendant under the provisions of § 20 of the Workmen's Compensation Act of 1919, known as § 396a20 of the Supplement which section provides that, "when an injury . . . for which compensation is payable . . . shall have been sustained under circumstances creating in some other person than the North Dakota workmen's compensation fund a legal liability to pay damages in respect thereto, the injured employee . . . may . . . claim compensation under this act or obtain damages from or proceed at law against such other person to recover damages; and if compensation is claimed and awarded under this act, the North Dakota workmen's compensation fund shall be subrogated to the rights of the injured employee or his dependents to recover against that person, provided, if the workmen's compensation fund shall recover from such other person damages in excess of the compensation already paid or awarded to be paid under this act, then any such excess shall be paid to the injured employee or his dependents less the expenses and costs of action."
The jury found in favor of the plaintiff and the defendant appeals on the sole ground that "the court erred in overruling defendant's motion for a directed verdict, made at the close of the entire case."
Such motions should not be granted unless the moving party is entitled to judgment as a matter of law (Richmire v. Andrews & G. Elevator Co. 11 N.D. 453, 92 N.W. 819); and it must appear from the evidence that the party making the motion is entitled to it as a matter of law upon the merits. This does not differ in principle, so far as the evidence is concerned, from a motion for judgment notwithstanding the verdict, and under such a motion the moving party must be entitled to it as a matter of law on the merits. AEtna Indem. Co. v. Schroeder, 12 N.D. 110, 95 N.W. 436; Meehan v. Great Northern R. Co. 13 N.D. 432, 101 N.W. 183; Dubs v. Northern P.R. Co. 42 N.D. 124, 171 N.W. 888; Scheffield v. Stone, O.W. Co. 49 N.D. 142, 190 N.W. 315; Baird v. Stephan, 52 N.D. 568, 204 N.W. 188.
Such motion will not be granted where there is an issue for the jury to pass upon under the evidence (Zink v. Lahart, 16 N.D. 56, 110 N.W. 931; State Bank v. Hurley Farmers Elevator Co. 33 N.D. 272, 156 N.W. 921), but, in determining the validity of the ruling, the evidence must be considered in the light most favorable to the party against whom the motion is made. Warnken v. Langdon Mercantile Co. 8 N.D. 243, 77 N.W. 1000; John Miller Co. v. Klovstad, 14 N.D. 435, 105 N.W. 164; Schantz v. Northern P.R.R. Co., 42 N.D. 377, 173 N.W. 556; Chubb v. Baldwin Piano Co. 54 N.D. 189, 208 N.W. 975.
Negligence, whether contributory or primary, is a question of fact, never of law unless the facts from which the inference can be drawn admit of but one conclusion. Cameron v. Great Northern R. Co. 8 N.D. 124, 77 N.W. 1016; Pyke v. Jamestown, 15 N.D. 167, 107 N.W. 359; Krauss v. Wilton, 40 N.D. 11, 168 N.W. 172. The questions of negligence and proximate cause become a question of law only when the evidence is such that different minds cannot reasonably draw different conclusions either as to the facts or as to the deductions from the facts. Dougherty v. Davis, 48 N.D. 883, 187 N.W. 616; Martin v. Parkins, 55 N.D. 339, 213 N.W. 574.
With these principals in mind we examine the evidence to determine whether there was any dispute in substantial matters requiring the jury to determine the facts.
This action is triable the same as if brought directly by Brazerol against the defendant for damages, and is subject to the same defenses.
Appellant insists that there is no evidence whatever showing negligence on the part of the defendant, and that though Brazerol was injured it was purely an accident so far as the defendant is concerned; or, if there be any question as to the negligence of the defendant the evidence shows conclusively that Brazerol was guilty of such contributory negligence as bars his recovery.
It was the business of Brazerol, as an employee of the Bismarck Dairy Company, to deliver milk to customers in the city of Bismarck and in doing this he was required to drive a truck call upon his customers, and, necessarily, deliver milk to residents on both sides of the streets. The employee had stopped his truck on the east side of a street running north and south and undertook to cross at some distance from the pedestrian crossing. He states that before crossing he glanced to the north and to the south and saw cars approaching from each direction. The defendant's car was coming from the north and it appeared to him to be some distance farther away than the car from the south. He determined he had sufficient time to cross the street before the car from the south would reach him and naturally thought the other would take longer time. Just as he reached the west side of the pavement, ...
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