Stephenson v. Steinhauer

• Decision Date: 18 April 1951
• Docket Number: No. 14233.,14233.
• Citation: 188 F.2d 432
• Parties: STEPHENSON v. STEINHAUER.
• Court: U.S. Court of Appeals — Eighth Circuit

188 F.2d 432 (1951)

STEPHENSON v. STEINHAUER.

No. 14233.

United States Court of Appeals Eighth Circuit.

April 18, 1951.

COPYRIGHT MATERIAL OMITTED

J. K. Murray, William S. Murray, Bismarck, N. D., and Robert Wallin, Hettinger, N. D., on brief for appellant.

H. R. Jackson, Lemmon, S. D. (C. F. Kelsch, Mandan, N. D., was with him on the brief), for appellee.

Before GARDNER, Chief Judge, and THOMAS and RIDDICK, Circuit Judges.

GARDNER, Chief Judge.

This appeal is from a judgment in favor of appellee for damages on account of personal injuries suffered by her as the result of a collision between a pick-up truck in which she was riding with her husband, and a truck owned and driven by appellant. We shall refer to appellee as plaintiff and to appellant as defendant.

The pleadings have not been printed in the record but it is recited that plaintiff's complaint alleged negligence on the part of the defendant and alleged personal injuries resulting therefrom, and asked for damages in the sum of $17,500.00. It is also recited that defendant's answer denied negligence and pleaded contributory negligence.

An action growing out of the same collision was brought by Arthur Steinhauer, plaintiff's husband, for personal injuries suffered by him and these two actions were consolidated for purpose of trial and tried together to the same jury. The jury found in favor of plaintiff and assessed her damage in the sum of $7,500.00, but in the action brought by her husband, Arthur Steinhauer, the jury returned a verdict as follows: "We, the Jury, find for the plaintiff, Arthur Steinhauer, and against the defendant, Glen Stephenson, and assess plaintiff's damages in the sum of $ None."

The jury having found the issues in favor of the plaintiff, we must view the evidence in the light most favorable to her, all conflicts in the evidence being resolved in her favor. So viewed the evidence may be summarized as follows:

The collision in which plaintiff suffered her injuries occurred on the afternoon of February 5, 1949, during a snowstorm. She and her husband resided on a ranch near Strool, South Dakota, and they had driven to Hettinger and Reeder, North Dakota, both places being about fifty miles distant from their ranch, for the purpose of purchasing necessary supplies. After making some purchases at Hettinger they drove on to Reeder to obtain further supplies, intending to proceed home along the county road leading south from Reeder to their ranch. There is a hard surface road between Reeder and Hettinger. Enroute between these towns plaintiff and her husband noticed that the wind was beginning to blow and to drift snow across the highway. There had been considerable snow that winter and travel had been difficult. They hastened with their shopping and started home from Reeder, hoping to arrive before the storm became severe, and as their home was south from Reeder they believed they might outrun the wind which was then blowing from the northwest. Leaving Reeder about one o'clock in the afternoon they traveled southward on the main traveled, graveled county highway toward their home. When about a mile and a half on their way they found that although it was not yet snowing the wind was rising and the snow was blowing, affecting the visibility, and that the county road was not well cleared, a part of the way being opened through snow drifts only for one-way travel, that is the cut was not wide enough to permit two cars going in opposite directions to pass. In these circumstances they deemed it safer to return to Reeder rather than attempt to go the fifty miles to their ranch and accordingly they turned around and started back to Reeder. Just before turning around they had passed through a long snow drift through which the road had been opened only for one-way traffic, with snow banks on either side, and the wind was drifting snow from these banks across the road, severely limiting visibility. Plaintiff's husband, who was driving the car, on starting through the drift, put the car in low gear and turned on the lights. At that time he could see ahead about 100 feet through the drifting snow. He was traveling at about five miles an hour. About half way through the cut both plaintiff and her husband observed defendant's truck approaching them from the north at a distance of about 75 or 100 feet. Plaintiff's husband immediately stopped his pick-up truck, and observing that defendant's truck was not stopping, started to shift his car into reverse gear to back up and to absorb the shock in the event there was a collision. The cut in which the collision occurred was about a quarter of a mile long and the collision occurred about half way through it.

Defendant's truck did not stop, but pursued ahead until it crashed into the pick-up in which plaintiff was riding, pushing it back and damaging it substantially. There was evidence that defendant was driving at an estimated speed of from eight to ten miles an hour through the cut and that during much of the time when he was proceeding through the cut he could not see a foot ahead of his radiator and did not see the Steinhauer pick-up until he was within two feet of it. His headlights were not turned on. Defendant was familiar with the cut and the road, as he had plowed it out the night before. Defendant's witness Carr testified that he was with defendant while going through the cut and that although they could see nothing at all of the road ahead of the truck, defendant drove ahead between eight and ten miles an hour.

Plaintiff testified that her husband was driving very slowly and very carefully and that she had the utmost confidence in him as a driver; that they decided to return to Reeder because the storm appeared to be getting worse and the road was not in good condition. Arthur Steinhauer testified that, "After the accident Stephenson came to my room in Reeder and said, `I am to blame for the accident. I was going too fast at the time.'"

At the time of the collision defendant was employed by the County of Adams, North Dakota, for the purpose of removing snow from the highways and he was taking a load of fuel oil for his snow-removing machinery. He owned the truck and the machinery to which he was taking the fuel oil. The equipment at the time was working for a farmer who was opening up some haystacks and he was taking the fuel oil out so that the equipment could be taken back into town for use during blizzards. Other facts will be developed during the course of this opinion.

At the close of all the testimony defendant moved for a directed verdict on the ground that there was no proof of negligence on the part of the defendant which was the proximate cause of plaintiff's damage, and that the undisputed evidence showed that he was employed by the county to remove snow and keep the highways open and that he was in the performance of that duty at the time of the collision, and further, the evidence showed that plaintiff was guilty of contributory negligence and that "the most that can be said is that both parties were guilty of negligence in going through this cut bank which only had room for one car, and under the law, under such a situation, neither party can recover." The motion was denied and the case was sent to the jury on instructions which are omitted from the record and to which there was apparently but one exception, hereafter to be noted.

In seeking reversal defendant contends: (1) that the verdict in the case of Arthur Steinhauer against defendant is inconsistent with the verdict in favor of Nettie Steinhauer and that the verdict in the Arthur Steinhauer case exonerates the defendant from all liability; (2) that Arthur Steinhauer was guilty of negligence which was the proximate cause of the accident and that plaintiff can not recover because she assumed the risk of all dangers caused by the surrounding circumstances; (3) the evidence is insufficient to sustain the verdict because defendant at the time of the accident was engaged in a privileged use of the highway and that plaintiff had full knowledge of the conditions of the highway but nevertheless rode as a guest of her husband in a raging blizzard; (4) the court erred (a) in sustaining an objection to defendant's offer of proof that he did not carry any liability insurance; (b) in striking out the deposition of Schumacher; (c) in refusing to consider and admit in evidence the affidavit of a juror under motion for new trial; (d) in denying defendant's motion for a new trial; and (5) the verdict of the jury is excessive.

As has been observed, Arthur Steinhauer and Nettie Steinhauer each brought a separate action against defendant for damages on account of personal injuries resulting from the same accident. The court ordered the actions consolidated for the purposes of trial because apparently the actions involved common questions of law and fact, and for the purpose of avoiding unnecessary costs and delay. The causes, however, remained separate, separate verdicts were returned, and separate judgments entered. This order for a joint hearing affected merely the mechanics of the trial. Defendant has not appealed from the judgment in the Arthur Steinhauer case and in fact could not be said to be prejudiced by the verdict in that case. If there is an inconsistency in that verdict that might well be a ground for a motion by Arthur Steinhauer for a new trial but it has no bearing upon the verdict in this case. The verdict in this case involves no inconsistency. However, it is held that consistency in a verdict is not necessary even if the issue were available to defendant here. United States v. Dotterweich, 320 U.S. 277, 64 S.Ct. 134, 88 L.Ed. 48; Dunn v. United States, 284 U.S. 390, 52 S.Ct. 189, 76 L.Ed. 356.

It is urged that plaintiff's husband was guilty of contributory negligence and that this negligence was attributable to plaintiff and that she assumed the risks and hazards attending the attempt of herself and...