Wilson v. Oscar H. Kjorlie Co.
| Decision Date | 03 January 1944 |
| Docket Number | 6908. |
| Citation | 12 N.W.2d 526,73 N.D. 134 |
| Court | North Dakota Supreme Court |
Syllabus by the Court.
1. Where a guest of the driver of an automobile is injured in a collision between the car in which he is riding and another motor vehicle which was caused by the negligence of the operator of the latter, contributory negligence of the host is not imputable to the guest, but if the guest is guilty of contributory negligence it bars his recovery.
2. Where recovery is sought for loss of earnings, in an action for damages resulting from personal injuries sustained by the operator of an established business which is largely dependent on his own exertions, it is error to admit evidence of profits or net income without laying a proper foundation by showing such preliminary facts as the character and magnitude of the business, capital employed, employees hired and the nature and amount of service rendered by them as well as the plaintiff himself.
Francis Murphy and Paul G. Thonn, both of Fargo, for plaintiff and respondent.
J. E. Hendrickson and Roy K. Redetzke, both of Fargo, for defendant and appellant.
This is an action for the recovery of damages for personal injuries sustained in a collision between a truck driven by an employee of the defendant and an automobile in which the plaintiff was riding as a guest. The case was tried to a jury which brought in a verdict for the plaintiff in the sum of $3,000. The defendant moved for a judgment notwithstanding the verdict or for a new trial. The case comes to us on appeal from the judgment entered on the verdict and from the order of the court denying defendant's motion.
The defendant challenges the correctness of the verdict upon the ground that the evidence fails to show negligence on the part of the driver of the defendant's truck and that it affirmatively shows contributory negligence on the part of the plaintiff which bars his recovery as a matter of law. Questions of negligence and contributory negligence are primarily for the jury. It is only when facts and circumstances are such that only one inference can fairly and reasonably be drawn therefrom with respect to either the negligence of the defendant or the contributory negligence of the plaintiff that the matter becomes a question of law to be decided by the court irrespective of the verdict. Bratvold v Lalum, 68 N.D. 534, 282 N.W. 514; Logan v. Schjeldahl, 66 N.D. 152, 262 N.W. 463; Stelter v. Northern Pac. R. Co., 71 N.D. 214, 299 N.W. 310; Schnell v. Northern Pac. R. Co., 71 N.D. 369, 1 N.W.2d 56.
In view of the verdict in favor of the plaintiff, we must consider the evidence in the light most favorable to him. When the evidence is thus viewed, it presents substantially the following facts: The plaintiff is a man 57 years of age. The accident in which he was injured occurred in the city of Fargo in the afternoon of August 28, 1942. He was riding in a car driven by Ferdinand Foss. He was injured in a collision that occurred between the car that Foss was driving and a truck owned by the defendant that was proceeding north on Third street.
Immediately prior to the accident Foss had entered Second avenue from an alley in the middle of the block west of the intersection at which the accident occurred. As he approached the intersection in intermediate gear at about 15 miles per hour he slowed down. Both the plaintiff and Foss saw the truck approaching 75 or 80 feet from the intersection as they entered it. Foss thought he could cross safely and speeded up a little bit. The truck was coming downgrade. Its speed increased as it approached. It was going about 30 miles per hour. After the Foss car had entered the intersection, the plaintiff said to the driver "hurry". Both vehicles were proceeding on the right sides of their respective streets. The truck struck the car on the right side crushing the rear door and rear fender. The plaintiff was rendered unconscious for a time and received severe bodily injuries.
The defendant contends that the plaintiff is guilty of negligence that contributed proximately to the accident because he failed to caution Foss to stop at the intersection and because he later admonished Foss to hurry as the truck bore down upon them.
The first question to be determined is whether the evidence is sufficient to warrant the jury in determining that the driver of the truck was negligent. Neither of the streets on which the parties were traveling was a through street or favored highway. There were no stop signs at the intersection. It was incumbent upon both drivers to exercise reasonable care and observe rules of the road. The evidence shows that the truck was exceeding, somewhat, the speed limit prescribed by an ordinance of the city of Fargo. The truck driver first saw the car as the truck was on the intersection line. The testimony is conflicting. The jury determined that the driver was negligent. The evidence is sufficient to support that determination and we cannot say that it shows, as a matter of law, that he was not negligent.
The next question is whether the plaintiff is barred from recovery by contributory negligence. Contributory negligence on the part of Foss alone would not bar the plaintiff's recovery. The correct rule with regard to this situation is set forth in paragraph 1 of the syllabus in Bagan v. Bitterman, 65 N.D 429, 259 N.W. 268, wherein we said: "Where one is a guest of a driver of an automobile, the fact that the driver cannot recover for damages accruing from a collision between his car and a truck, because of his own contributory negligence does not prevent the guest from recovering damages arising from the collision, when the collision was caused by the negligence of the operator of the truck, as the contributory negligence of the driver of the car is not attributable to the guest; but, if the guest is himself guilty of contributory negligence, then such contributory negligence would bar recovery."
We now come to the question of the contributory negligence of the plaintiff himself. If the plaintiff was aware of obvious danger in time to warn the driver and failed to do so, or if he exercised control or authority over the driver which resulted in negligence on the part of the driver, the plaintiff would be guilty of negligence.
Both the plaintiff and the driver saw the truck approaching the intersection some 75 feet away. The driver being aware of the approach of the truck, there was no negligence on the part of the plaintiff in failing to warn the driver. Both occupants of the car thought it was safe to proceed. The danger did not become apparent until they had entered the intersection. The jury was warranted in determining that there was no contributory negligence on the part of the plaintiff either in failing to warn the driver or in not directing him to stop. Gosehmann v. National Biscuit Co., 204 Wis. 427, 235 N.W. 792.
After the danger became imminent, the plaintiff said to the driver "hurry". The defendant argues that he thereby exercised control over the automobile. In this he assumes too much. The record does not indicate that the plaintiff's exclamation affected the driver in any way or contributed to the accident to any degree whatever. Rodgers v. Saxton, 305 Pa. 479, 158 A. 166, 80 A.L.R. 280. The jury found for the plaintiff, thereby determining that he was not guilty of negligence that contributed proximately to the accident. The evidence is sufficient to justify the verdict in this respect.
The defendant contends that the evidence is insufficient to sustain any recovery for loss of earnings; that the court erred in denying defendant's motion to strike the testimony pertaining to the loss of future earnings and also erred in instructing the jury with respect to the recovery of damages for loss of earnings which was unduly emphasized by the court in a further instruction limiting the recovery of such damages to the sum of $166.66 per month or at the rate of...
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