Umland v. Frendberg

Decision Date12 March 1954
Docket NumberNo. 7421,7421
Citation63 N.W.2d 295
CourtNorth Dakota Supreme Court

Syllabus by the Court.

1. Under the provisions of Section 28-2732, NDRC 1943, on appeal from an action tried by the court without a jury, whether triable to a jury or not, the supreme court will try anew the questions of fact if the appellant demands a trial anew of the entire case and will review and weigh the evidence independently of the trial court's findings, but in arriving at its decision will give to those findings appreciable weight, especially when they are based on the testimony of witnesses who appeared in person before the trial court.

2. If two motor vehicles coming from opposite directions, each on its right side of the highway, approach or enter an intersection at approximately the same time and one turns to the left, thus placing the other on the right, the driver of the turning vehicle must yield the right-of-way to the other.

3. The driver of a motor vehicle approaching an intersection has a right to assume that the driver of a second vehicle likewise approaching the intersection will observe the law of the road and the driver of the first vehicle cannot be charged with contributory negligence because he relied on that assumption, unless the circumstances were such that a reasonable person would conclude that the driver of the second vehicle intended to disregard the law in a manner likely to create a hazardous situation.

Strutz, Jansonius & Fleck, Bismarck, for plaintiff and respondent.

F. E. McCurdy, Bismarck, for defendant and appellant.

MORRIS, Chief Justice.

The plaintiff in this action seeks to recover $400 damage to his automobile and $70 for the loss of its use for approximately six days. A jury was waived and the case was tried to the court by stipulation of the parties. The basis of the action is a collision between the plaintiff's automobile and that of the defendant, which the plaintiff alleges was due to the defendant's negligence. The defendant, on the other hand, denies that he was negligent and alleges that, if the plaintiff's property suffered any damage, the negligence and the carelessness of the plaintiff contributed proximately thereto.

The trial court found that plaintiff's damages were caused by the negligent operation of the defendant's automobile by the defendant and that there was no contributory negligence on the part of the plaintiff. He awarded damages in the sum of $362.41. From a judgment entered in accordance with the trial court's findings and order for judgment, the defendant appeals and demands a trial anew in this court.

Under the provisions of Section 28-2732, NDRC 1943, on appeal from an action tried by the court without a jury, whether triable by a jury or not,

'The supreme court shall try anew the questions of fact specified in the statement or in the entire case, if the appellant demands a retrial of the entire case, and shall finally dispose of the same whenever justice can be done without a new trial, and shall either affirm or modify the judgment or direct a new judgment to be entered in the district court.'

Under the provisions of this section the supreme court must review and weigh the evidence independently of the trial court's findings. But in doing so this court will give those findings appreciable weight. This is especially true when the findings are based upon the testimony of witnesses who appeared in person before the trial court. Knell v. Christman, N.D., 59 N.W.2d 293, and cases therein cited.

The accident in question occurred at about 2:30 p. m., June 9, 1951, on U. S. Highway No. 10, about twenty miles east of Jamestown. The plaintiff testifies that he was driving about fifty miles an hour in an easterly direction. The defendant, going at about the same speed, had been for some time traveling in the same direction about a block ahead of the plaintiff. As the defendant approached an intersection of No. 10 with another highway running north and south near the town of Eckelson, the defendant got over on the left, or north, side of the road. The plaintiff 'figured' that the defendant would turn back again into the right lane but instead of doing that the defendant turned sharply to the left and struck a car coming from the opposite direction. The defendant had applied his brakes about seventy-five feet before the collision occurred. The plaintiff also applied his brakes, slowed down a bit, and then released them. When the collision occurred the plaintiff was going not over thirty-five miles an hour. When the defendant's car collided with the car traveling in the north traffic lane his car bounced back and hit the plaintiff's car just as the plaintiff was passing in the south lane, resulting in the damages for which this action is brought. The plaintiff testifies that he was about ten or twelve feet behind the Frendberg car when the collision took place and that the Frendberg car was bunted from north to south a distance of ten or eleven feet until it hit the plaintiff's car.

A Mrs. Frankenberger was the owner of and riding in the car that first collided with the Frendberg car. Her car was being driven by Mrs. Frankenberger's sister-in-law. Her father and daughter were also passengers. This party was driving westward on No. 10 toward Jamestown. She describes the accident this way:

'Well, I couldn't exactly say how long. I saw that my sister-in-law and I both saw him, and I says, 'Take to the ditch.' Then he went back like he was going for his own side of the road, so we kept to going; and all of a sudden he went into us.'

Mrs. Frankenberger also testified that the Frendberg car hit hers on the left front wheel and knocked it under the engine. The Frankenberger car was stopped instantly with two wheels in the ditch and two wheels on the road. She also said that the Frendberg car 'bounced right back on the highway' and 'His car bounced just like a rubber ball bounces.'

The sheriff of Barnes County testified that he reached the scene of the accident shortly after three o'clock. There he found three cars that had been in an accident. One car was in the ditch on the north side of the highway; one was on the south side of the highway facing east; and the Frendberg car was across the road facing north at a little angle northeast and southwest. He found glass and debris 'Way over the center line and closer to the north side.' He also testified that there were tire burns on the highway where the Frendberg car had been shoved back and forth on account of the two collisions.

The defendant's version of the accident is as follows:

'I was going to take that road to Eckelson. A little beyond that underpass I was going around between fifty and sixty and began to slow down and turned my left-hand signal on and started edging over toward the road to where I was going to turn off. Then as I was going along, I held my hand on that signal light because it automatically turns out. Well, I had to be sure, so I held it down. Then I looked into the left-hand lane to be sure it was clear so I could make a turn. I took special care. I don't hear; and when I'm driving, my attention is on the road because there is no radio or anything to bother me at all. The road was entirely clear.

'And then I started to make the turn; and just as I got over, bang. That is the way the thing happened.'

Neither Mrs. Frankenberger nor the plaintiff saw the defendant's signal lights.

As bearing upon the defendant's negligence, we call attention to these statutes:

Section 39-1011, NDRC 1943, which provides:

'The driver of a vehicle intending to turn at an intersection:

'1. * * *

'2. When intending to turn to the left, shall approach such intersection in the lane for traffic to the right of and nearest to the center line of the highway, and in turning shall pass beyond the center of the intersection, passing as closely as practicable to the right thereof before turning such vehicle to the left.'

Section 39-1017, NDRC 1943, requires that:

'When two vehicles approach or enter an intersection at approximately the same time, the driver of the vehicle on the left shall yield the right-of-way to the vehicle on the right * * *.'

It is obvious from our summary of the testimony that in approaching the intersection the defendant violated Section 39-1011, supra. If the defendant actually reached the intersection before turning to the left, a matter concerning which the evidence is in dispute, when he turned his vehicle he was on the left with respect to any other vehicle approaching the intersection in the north lane from the east. It is clear that the Frankenberger car was approaching the intersection at approximately the same time from the defendant's right and it therefore had the right-of-way. Under these circumstances it became the duty of the defendant to look out for and give to the Frankenberger car the right-of-way. This he failed to do. His failure to do so was the proximate cause of the collision between the defendant's car and that belonging to Mrs. Frankenberger, which resulted in defendant's car being bounced back into plaintiff's traffic lane. The negligence of the defendant with respect to both collisions is clearly established. Vance v. McClearly, 168 Wash. 296, 11 P.2d 823.

In Boyd v. Close, 82 Colo. 150, 257 P. 1079, 1080, it is said:

'If cars approach each other on a straight track, each on the right-hand side of the road, and neither turn, no question of precedence can arise. But he who turns, thus transferring the other from his left to his right, must yield. Otherwise, no rule governs, and 'the race is to the swift and the battle to the strong.''

As a result of the collision with the Frankenberger car the Frendberg car was bounced back and into the side of the plaintiff's car as the plaintiff was passing in the south lane of traffic. For injury to his car resulting from the second collision, the plaintiff seeks recovery here. The defendant urges...

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