Erdahl v. Hegg
98 N.W.2d 217
N.D.
1959
Check Treatment

*1 Plaintiff and Respondent, ERDAHL, and Appellant. Neil Defendant HEGG, Plaintiff and Respondent,

Sven ERDAHL,

Neil Defendant and Appellant. HEGG,

No. 7760.

Supreme Dakota. Court of North

June 1959.

Rehearing Sept. 29, Denied

mobile operated owned defend- ant, Hegg. plaintiffs Neil damages proximately were caused of the defendant. de- *3 fendant, answer, any in negli- his denied gence part on his and counterclaimed for proxi- damages his which he were mately negligence of the caused plaintiff, Ruth The two actions Erdahl. were purposes consolidated for of trial and judgments trial resulted in verdicts and plaintiffs in against favor of both and Subsequent judgment defendant. to the defendant judgment for not- moved or withstanding verdict in the alterna- tive for a new case. These trial each were denied in each case motions and appealed defendant has the orders of from denial.

The matter considera first for appeal tion on this the correctness judge’s on order the motion for judgment notwithstanding At the verdict. the close of cases these defendant had moved for directed verdict plaintiff grounds; on the “that has failed to on show defendant and that Ruth Erdahl’s own tes timony negligent, shown she was has observation, failing proper to make control, failing have her vehicle under directly and that she on admits cross- stopped examination she could have time she first saw the her vehicle from the attempt if defendant’s vehicle she had so ruling ed.” The correctness judgment notwithstanding motion for depends upon verdict whether defendant & Wattam, Vogel, Vogel, Bright Peter- to a verdict was entitled directed at the appellant. son, Fargo, for defendant and motion for a verdict time the directed 420, Bertsch, made. Rokusek v. N.D. 78 Nilles, Fargo, for Nilles, & Oehlert 657; Stenvick, Filler v. 50 N.W.2d 79 respondent. plaintiff and 798; 422, 56 N.D. N.W.2d Kinnischtzke Ullin, 495, Glen 79 N.D. 57 N.W. BURKE, Judge. question therefore is 2d 588. whether evidence, damages light when viewed in actions are most These two respondent, to the they will plaintiffs alleged as a favorable suffered sustain Jensen, Fagerlund an verdict. 74 collision between automobile N.D. result of 816; Erdahl, oper- Meinecke, N.W.2d Schnoor v. and 24 by plaintiff, Sven owned 96, 40 Erdahl, N.W.2d 803. plaintiff, auto- ated St.,, side, rolled over on its slid across 1st southwest The collision occurred curbing at the southeast corner of 1st struck St. quarter the intersection intersection, upright prior Immediately returned to Fargo. 10th Ave. N. with, Erdahl, position stopped facing northeast plaintiff, Ruth collision its, its front wheels on the boulevard and St. proceeding on 1st south been had traveling rear At its closest wheels street. Hegg been had defendant point point im- approach- feet from the party Ave. each on 10th As east pact. came rest other defendant’s car intersection view of ed the headed south with its front about house wheels some extent obstructed 11 feet inter- north south side of the the intersection corner of northwest *4 10th right section and its of the side about 3 feet east 45 north was located feet which of 1st the north and south center line of the- of the curbing and 50 feet west Ave. in intersection. 30 feet are curbing. Both St. streets was The time from width curb to curb. Mrs. Erdahl testified that after ac Octo- on an 7:45 o’clock between 7:30 and cident, one of the passengers- defendant’s had both cars evening. was and ber It dark him, you said to “I told not to drive so testified that Mrs. lights on. Erdahl fast.” In testimony his the defendant de she approached the intersection as she nied that had he ever been so admonished. hour, 20 an less than miles slowed down to Defendant testified that Mrs. Erdahl had “just past the right she that looked said, thought you “I stop”'. were going to 35 to she of when was corner the house” Mrs. Erdahl making denied this statement. and saw 40 north intersection feet of Defendant telling admitted an investigator lights approaching car which she of an speed that the of car his was 15 miles an: away; she two estimated was about blocks hour when he car, struck the Erdahl but left, approaching looked to the saw no cars he said testimony that his given at the proceeded into the that direction and from correct. was of intersection. When she was two-thirds way the intersection saw she across Does this support evidence a find top ing of It of right negligence car on her. part defendant’s on the of the de for her take action fendant then too late finding of an absence of contributory collision. Defendant testified negligence to avoid the on of the plaintiff, at approached the intersection Questions that he Ruth Erdahl? neg of speed ligence, contributory which he estimated to be 25 miles negligence proxi less; per hour, although might have been mate cause ordinarily are questions of fact jury. he about feet west for the only when was 70 of that where state Er- he of the center of the intersection saw the evidence is such that reasonable meni can distance north draw one car at the same dahl about conclusion therefrom that intersection; immediately “jam- questions he questions these of the become for law had reduced his King med on his brakes” court. Railway Express v. Inc., miles hour when his Agency, N.D., five 657; about 94 N.W.2d Goulet O’Keeffe, N.D., car. left Erdahl His car v. car struck 889; 83 N.W.2d Killmer dry paving 43 Duchscherer, on the heavy marks N.D., skid 72 N.D.2d 650. car struck the long. The defendant’s feet complaints plaintiffs In their center broadside. The car Erdahl three pleaded post at ordinances center the rear of had impact was the Fargo car. one the Erdahl The lo- of fixed the seat of the front respect impact with at the site the collision point of limit at 20 cation hour. In his answer 10 feet north of defendant about admit street was pleaded that Ave. and about ted were line of 10th ordinances curb the south at time of the the west curb accident. line of effect Defend 4 feet east 3 or testimony his the Erdahl car ant admitted Upon being struck his 1st St.

221 arguing point provided of the limit was in excess contributory negligence Erdahl’s defendant admission Defendant’s ordinance. lays was, great upon testimony of it her stress city ordinance violation of when she first car it Knudsen saw defendant’s self, negligence. evidence 340; away. says about two At 316, blocks He N.W.2d Arendt, N.D., argues N.W He palpably .2d incredible. Boomgarden, tleson v. the car which blocks to sustain she saw two therefore sufficient It was away been part of the could not have defendant’s car finding but must have been another car which jury. connection by the In this defendant turned off proof the intervening no intersection there is urged that defendant has and that it that she de in effect follows did not see ordinance fendant’s car at all and did notice of therefore she proof that was no because there keep proper lookout. fact that limit, provided less than that the car which struck her car could not generally, residence districts state law for have been away 39-0902, two blocks at the time she required by posted Sec. as looked to right, require did there is that reason NDRC *5 jury to find that the car she speed ordinance was saw was that the no evidence the one which struck her place the car. view of the time of col in effect at circumstances, all the However, unqualified jury the well could lision. defendant’s have found that she the dis the in overestimated ordinance was admission that tance from dispensed necessity headlights which she saw effect with of estab the the the approaching of car by and that car proof. that fact Mitchell the lishing she Co., saw the one 736, 124 in the ac Land 19 N.W. involved Knudtson jury cident. Once the the- had reached

conclusion that defendant had been travel- ling speed, at an excessive it would follow jury that the are also satisfied We permissible as a inference from loca the the reasonably that de have found could of tion the accident in the quar southwest of limit had exceeded the fendant intersection, ter of the that Ruth Erdahl' provided by state law. hour an 25 miles had entered in intersection the exercise defendant, true, by the as is stated is of care reasonable and was therefore free- any testimony by witness that is no there contributory of negligence. If defendant that exceeding limit. that defendant travelling at an excessive he- impeach however evidence to There was statutory had forfeited his right way. of testimony of the and his defendant point. The fact that a car entering on this “The of a driver witnesses a “jammed highway right brakes” imme has to ex- his favored defendant using it plaintiffs’ car, pect that will conduct others diately seeing upon fact manner, lawful a 43 themselves that car left skid marks feet his position himself a he of if finds impact length, force and the il as peril because of excessive by plaintiffs’ the fact lustrated car car, approaching it cannot be of an long and slid or a rolled over skidded dis contributory guilty he said that tance, in the direction in which its matter negligence a of law because as it, own would momentum have carried anticipate he failed to in the direction in which defendant’s car Logan the other driver.” conduct of which, travelling, had been are facts when 152, 159, Schjeldahl, 66 N.D. together, permit taken would reasonable 463, 466. N.W. men infer defendant had been travelling greater than judgment the 25 notwithstanding motion for miles an hour to which he properly admitted. verdict was therefore denied. prima denying it shall to exceed facie unlawful appeal from the order

Upon the has limit an stated which was 25 miles hour trial defendant a new the motion for statute and 20 an hour miles specified seven argued some ordinance. The an violation such ordi law, in the trial errors of committed nance or is not specified statute as case, grounds as which were only matter of law neg We shall but is evidence of court below. a new trial in the ligence jury may in our consider assignment which consider first determining an negligence. new trial issue of Attle opinion requires granting of N.D., v. Boomgarden, son 73 N.W.2d 448. assignment relates in this case. This In view as by judge defendant’s his the trial given the instruction speed before the accident jury to was miles effect to be given hour or 5 hour instruc- in excess of city violation ordinance. ordinance, limit fixed the in tion follows: is as struction charge was in effect a that the any one “You are instructed defendant negligent a matter of as provisions of violating law. The erroneous instructions were not refer- hereinbefore law or ordinances cured judge fact that the trial also high- traffic on the regulating red instructed that one who violates an ordi prima ways or this state streets of nance or law “is guilty neg facie you if negligence; and guilty ligence.” “prima The words facie” in preponderance from a fair find legal technical or sense are not ordi case either evidence narily vocabularies of mem time plaintiff at the or defendant juries likely bers of and it is most that the *6 question guilty the was accident in of subsequent ordinary instructions in English provisions of any of the violating of would be explanation construed as an of highways on the regulating traffic law “prima the guilty words facie negli of streets, given have them to as I and gence.” The instruction was erroneous they guilty then would be of you, and, case, because the of evidence in the negligence.” clearly it was prejudicial. this instruction clear- The second of specified Defendant has also that it was a traffic ly charges that violation of the judge error for the trial to instruct the is a or statute as ordinance jury concerning city the regulat- ordinances repeated charge of law. This matter speed city ing on the streets for the rea- in instructions as later the follows: that there son was no evidence in the rec- posting to the speed ord as of such limits. are therefore instructed that “You question we While have considered this in preponderance a from fair find you if sufficiency our discussion of the of the this case evidence in that either the of evidence, advisable, we think it although it Erdahl, plaintiff the or de- repetitious, somewhat to add to that fendant, Hegg, at the time of the Neil here. discussion question guilty in of accident provisions of the violating of principal ordinance under attack is highways traffic on the regulating law 8-0302 of the Fargo Section Ordi- streets, have given I them as to and provides: nances. This section guilty he would be of you, then she or “Subject provisions to of Sec- negligence.” 8-0301, except and tion in instances speed specified a charge where lower in parts of the These are state, or state article laws of this Both the statute and erroneous. prima be ordinance, facie lawful for regulating the shall districts, vehicle to provide that driver drive same residence in vehicles allegations complaint held that twenty miles exceed at a light and answer must be construed hour, drive and per the nature litigation and twenty miles in excess the allegation and au- through of an streets admission except hour on agency thorized excess would be as an speed not in construed where avenues allegation agent be and admission that an hour shall twenty-five was authorized to the contract which make lawful.” subject matter of the suit 39-0902, Par. law, Section state NDRC, provides: Supp. .Upon the reasoning basis case, the foregoing' allegations lawful presumably “it shall complaints admissions and answers drive a vehicle to driver * cases, * * in these pleaded that the ordinances exceeding speed not same aat effect, were in must be construed to relate in a resi- an hour twenty-five miles particular to the place subject where the public parks un- dence district matter action, collision, took by local speed is fixed less a different place. ** The admission in the answers duly posted authorities it unnecessary prove therefore made that, either the enactment can be no doubt the ordinance or There 39-0902, posting of the limit. provisions of Section There under therefore no error which fixes a supra, city ordinance instruction which submitted the jury. law provided state than that ordinances limit lower the limit is until become effective cannot other specifications Defendant’s of er- proof such posted. follows rors relate to incidental remarks lo given effect in ordinance was judge, to the striking require city would evidence cality in a the ground that a witness stated a con- duly enacted had been the ordinance clusion and other matters which are re- locality particular and evidence lated to the issues in these cases. Since posted. had been a new trial in these granted cases must be *7 any event and it plaintiffs’ complaints alleged unlikely is most case that this any questions of these upon were in effect in will arise that ordinances new trial dowe not the time the accident. consider them. Fargo at unqualifiedly ad- answers The defendant’s denying The order a new trial is revers- the ordinances were in effect. mitted that granted A trial ed. new with leave to complaints allegations parties to amend pleadings. to the answers related not admissions of fact enactment alone effect. were in

enacted ordinances SATHRE, J., MORRIS, C. J., con- cur. A similar situation was before somewhat in Mitchell v. Knudtson Land court

this Petition 736, On for 946, Rehearing 124 N.W.

Company, 947. it that “O. A.

In that case was duly and authorized Knudtson BURKE, Judge. Company.” Knudtson Land agent of the a petition filed Plaintiff has rehearing the an- was admitted allegation This case, in which urged it is chal- judgment the case was swer. in the case Attleson v. decision Boom proof in the lenged there no because 448, 450, garden, N.D., N.W.2d cited had been Knudtson authorized record opinion filed, in the court errone principal to a con- to bind his writing authority propo ously considered as for the the court real estate. There to sell tract proof of violation of sition IRELAND, Bertha A. Plaintiff not negligence and limit was evidence Respondent, petition per In the se. Attleson v. pointed that the decision out 39-0902, Section CHARLESWORTH, construed Boomgarden William R. Defendant Appellant. be 1943, provided: “It shall which NDRC * * * prima exceed unlawful to facie No. 7773. * * * speed limitations”, while the any Supreme North Dakota. Court of accident at time in force statute 21, Aug. 254, Laws 1959. (Chapt. case instant provided: “It be * * N.D.1955) shall Sept. Rehearing Denied * * * * exceed in Attleson decision Since the limitations.” upon words Boomgarden stress laid proof

“prima holding facie” in unlawful was prima facie negli negligence and

only evidence of per se, well taken

gence criticism is concerned.

so far statute is as the state however, case, also error was

In this

specified upon judge’s instruction neg- guilty of

that the defendant would be speed limit fixed if he exceeded the

ligence pro- This ordinance ordinance.

vided : * * * It shall be

“8-0304. driver of vehicle lawful for the ex- the same drive twenty hour and unlawful miles an

ceed twenty at a in excess

to drive an hour.” of this ordi- construction

A reasonable say that words “it requires us to nance supplied be- prima facie” must

shall be in the latter unlawful the word fore other words this ordi-

the ordinance. that it shall provides

nance to exceed for a driver an hour. the rule announced follows supra, applica- Boomgarden,

Attleson city ordi- under the instruction

ble to petition rehearing there-

nance. denied.

fore MORRIS, J.,

SATHRE, J., con- C.

cur.