*1 KELMIS, Donna L. for the Use and Benefit Jr., Joseph Kelmis, of Herself and Charles Kelmis, Ricky Lynne Kelmis, David Lee
Jeffrey Kelmis, Scott and Carla Dee Kel mis, Appellant, Plaintiff and
v. COMPANY,
CARDINAL PETROLEUM Foreign Corporation, Defendant Respondent.
Civ. No. 8420.
Supreme Court of North Dakota.
Jan. 1968.
Rehearing 1, 1968. Denied March
7H *3 the other em- The driver front seat. decedent, including ployees, employed by Boeing. mechanics were morning left Minot on This crew 7:05, en route approximately the accident proceeded They Mike-One. Missile Site 83 to Highway No. U. north on S. turned west intersection and Lansford county graveled highway No. driver, Freed, testified that as road. county highway No. drove west *4 Meschke, Loder, Herigstad, Pringle, Ma- fifty-five fifty and traveling between Minot, honey plaintiff Purdy, & for and hour, defendant’s while the miles appellant. trav- defendant’s vehicle testified that miles an eling 40 hour. about Palda, Palda, Anderson, Peterson & Minot, respondent. only for the defendant and car was sur- The of the the involved in Boeing crew
vivor of the amnesia evidently suffered He accident. STRUTZ, Judge. received, for injuries he can- aas result of anything passing after not remember wrongful This is an action for the death miles some twelve point highway on No. 16 husband, Kelmis, plaintiff’s of Charles the collision. east of the scene of the by brought plaintiff surviving the the as wife, and for herself for use and the bene- in the acci- involved The vehicle other fit the surviving five minor children trac- 1964 Mack dent was plaintiff and deceased. trailer, 37,000 pounds, weighing tor and fifty-four length of an over-all which had by plain- Pursuant to written motion employee by an being driven feet. It was tiff, the trial court ordered the issues defendant, Com- Cardinal Petroleum liability damages separately, and tried and admittedly operating the ve- pany, thereafter proceeded to the issue of lia- try of the accident hicle at time bility. issue, hearing After on this employment. This vehicle course of court ordered that the plaintiff’s action being an oil well drilled was en route to judgment pur- dismissed. From entered ' Carpió. vehicles collided The north of order, suant to such the plaintiff ap- 28 county highway No. the intersection of pealed court, demanding de trial no- county highway 16. At the and No. vo. accident, county highway No. 28 runs dispute There is much as to the facts. south, county highway No. north while At the time the accident, westerly direc- 16 in an easterly runs employedby husband Boeing The Com- tion. pany. morning he, On accident employees county three undisputed other It traffic on of that that com- pany, 16, approaches was en the inter- highway route to missile site No. as it desig- “Mike-One,” county 28, nated as highway No. con- with one of section with such employees, Freed, “yield way” sign. Andrew It is driving trolled 1965 Plymouth county highway sedan which No. Boeing had also conceded as leased county approaches from National Car 28 intersection with Rentals. de- Plaintiff’s 16, sign cedent was highway approxi- is a riding passenger No. there the left ’ mately giv- rear of the feet the intersection supervisor car. 500 approaching junction. crew was riding passenger as a in the notice of case, appar- it is The driver of the From record in this defendant’s truck stated cars, high- machinery, there that the intersection of the two were no no ent other wide-open ways might is a intersection. There nor other circumstances which trees, hills, nor buildings, no no diverted his attention from the inter- are no could have section. vegetation which obstructed visibility either for a distance facts, trial found court On above at least one-half from the intersec- mile plain- dismissed the defendant and tion, exception slight knoll with the found complaint. The court tiff’s 16, length highway feet in about 100 on No. under defendant’s vehicle was driver of the 1,000 approximately inter- feet east of the Boe- danger until the obligation sense no section. is contended the defendant ing vehicle had reached a happen a car should to be behind to a not brake 16 after which it could No'. when approaches a driver inter- knoll stop entering the intersection. before section from the north No. that, speed of travel at the court found car No. would be hidden stopped vehicle, Boeing it could have from view for distance of about feet. approximate- applied if its brakes had been knoll, 1,000 however, This feet ends east of The court ly 128 feet from intersection. and for the last thousand further found when feet a vehicle approaching from the east on *5 defendant’s ve- point, had that the reached highway plain No. 16would in from view where hicle was at the
highway No. 28. 'Ijave time to avoid stopped it could 'not' in
The record also that discloses the weather found the collision. court further morning on the clear, of the accident was the vehicle was driver of defendant’s that the highways good were in duty ap- winter constantly under for not look driving condition. left; There was some snow that the proaching traffic from ditches, in the not, but the highways fact, Boeing were clear. driver did observe Vehicle his vision was obstructed because The only eyewitness accident who by either lefthand exterior rear-view testify was able to was driver of post left mirror or the corner of the wind- truck, since only survivor the crew of shield. traveling in the Boeing car does not member anything concerning the accident. court also found that defendant’s The truck driver does not remember wheth- duty driver is not held to the the most of er he looked to the east approach- for traffic duty careful but driver to the of reasona- ing county highway intersection on No. bly prudent driver, that there no evi- 16,but he believes that did so because unreasonably; dence that such driver acted always looked for oncoming traffic when right that the defendant’s had a driver approaching an not, intersection. He did Boeing assume that the ve- of however, observe the Boeing car it until was respect right hicle way, his of until at the directly in front of him. plaintiff’s he became aware that brakes, He then slammed on his but colli- so; not going to negligence do that the sion that time was unavoidable and vehicle was collided with the Boeing great car with sole, collision; proximate cause of the violence, force and three killing oc- of its and that there was negligence no actual cupants. The collision approxi- occurred in part of the driver of defendant’s mately the center of the intersection. There truck. were no tire marks on highway No. 16 to in- dicate that the Boeing appeal car’s brakes had been from a judgment On in an action applied at were, all. There however, tire jury, tried appellant without a where the de- of approximately marks novo, fourteen feet appellate mands trial de court length left the defendant’s vehicle. anew, tries the entire case giving apprecia- that a driver on the trial court. risk. The fact findings weight ble protected Grabinski, 422, on a N.D. 43 N.W. an intersection Braaten v. right 865, signs that he has Wilson, “yield” knows 381; 79 N.D. 2d Gust v. proceed right 1371; way, give not him the Cor does C.I.T. 38 A.L.R.2d N.W.2d keep prop by failing to due care (N.D.), 143 94. without poration N.W.2d v. Hetland may operate their er lookout for others princi- apply negligent enter in a manner while This court will not vehicles v. ple reviewing tried without a case Anderson ing the favored give appreciable weight to the jury it 294. (N.D.), will 94 N.W.2d Schreiner court, findings order to re- the trial that a driver on such true necessity trying anew all right lieve to assume others has the questions case. On way. of fact the entire right that does honor his But novo, appellate de court will find him, right, trial to drive because such allow (N. facts itself. Kuntz Stelmachuk without due care. v.
D.), 810. 136 N.W.2d court the trial agree with We negligent car was Boeing us, the driver of the case before in which of the vehicle operation in the did that he admitted the defendant’s vehicle riding, and that deceased was just until see the the collision. cause even know He does not in front of him. plain bar does not However, fact approach to the east for whether he looked of her recovering death for the
tiff
vehicles,
might
he thinks he
ing
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ve
the defendant’s
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husband
approach
usually did
have because he
so
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if such
negligent and
hicle also
intersection. While
hap
to the
proximately
gence
contributed
that other
driver had the
to assume
Ordinarily, neg
pening
the collision.
way, he
vehicles would honor
*6
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part of
ligence on
must,
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imputed
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(N.
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him. Anderson
that
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Only
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D.),
so and that his proxi- under circumstances As we of this case said Anderson v. Schrein er, mately supra, question to the to be contributed accident. determined this case is whether the conduct the de judgment of the district court is fendant’s driver on the favored versed, and the case is remanded for deter- light reasonable in the of what damages. mination of the issue of saw, seen, or should have had he looked. is true that the law PAULSON, JJ., and ERICKSTAD con- Boeing down, stop car to slow cur. hecessary, yield way defendant’s vehicle But, looked, had defendant’s driver TEIGEN, (dissenting). Chief Justice have seen Boeing that the majority ap- I dissent. The have cited going to do He this. would have seen plicable law unless it is intended but Boeing car ap half mile as duty stop that the find favored driver’s proached intersection, except space for a attached at distance or slow his vehicle of not par more than 100 feet when it was before the of a thousand feet or half mile
tially knoll; hidden behind but for intersection inferior vehicle reached the 1,000 last feet ap of the Boeing vehicle’s they have not found what proach to the he would have arose, duty steps to take to avoid a collision view, had it in constant and he would they have action after nor measured his that it known was not slowing for a point. yield. There is no evidence or skid brake marks in gravel to indicate 39-10-24, N.D.C.C., pocket Section slowing down of the ap car parts, provides preferential way proached the intersection. itWas reason may by stop *7 at or intersections be indicated n yvhat able, light in the of he saw should or yield signs. provides Subsection 3 thereof have seen had he proper a maintained look approaching that the driver of vehicle out, heavy for him to continue driving his yield sign in shall obedience thereto vehicle toward de intersection without speed slow down to a reasonable for ex- creasing speed pos his in a order to avoid isting stop and shall if neces- conditions collision, sible in view of fact that there sary yield right way to of to warning sign was a advising defendant’s approaching in the or an- intersection on driver the approaching yield intersec highway closely other so as constitute an to tion, seen, he saw, when or have that should pro- immediate hazard. This section also the Boeing failing car was to slow down vides that if such driver involved in a yield? a having collision with a vehicle after driven past yield sign such collision “shall be find from We this evidence that prima-facie deemed evidence his failure defendant driver’s failure to decrease his yield way.” right speed when he saw or should have seen slowing driver for the It is was conceded that driver of auto- purpose yielding, was negligence, riding mobile in which was deceased negligence proximate negligent such cause negligence was was and that his was however, which it can said that the collision whether proximate cause fail- How- driver negligence in decedent’s death. directly resulted wrongful proper contributed suing .keep for the lookout ever, plaintiff against in de- bring proximately resulting action collision not elect to death did vehicle, but has elected cedent’s death. which truck with owner sue Schreiner, supra, where v. In Anderson riding the deceased was the vehicle existed, we said: factual a similar situation being driven truck The owner’s collided. of the collision been by employee observing at time an its Whether highway negligence to which was upon preferred negligent, and whether his. yield signs, cause, au- by on what depend was controlled access 39-10-24, N.D.C.C. observed circum thorized after he has does § judgment and reached stances preferred highway, usu upon A driver respect negligence thereto. The through highway, ally an arterial or called non-observing is in not maintain privilege have an exclusive does not ing a In a sense lookout. require crossing those it to so do remote, the 'failure because whether at he must look for their own risk but injury de an proximately causes to look intersecting approaching upon an vehicles observation, upon pends, the lack of highway must be such that and his lookout re upon as a the driver does but what person the exercise will see what rea looking. it is sult of not Therefore ordinary see in like circum care would may find say jury if a sonable to Schreiner, N.D., stances. driver, Anderson v. observing an that the conduct of Subject qualification, 294. to this N.W.2d car approaching of an who was aware care, that he he has exercise reasonable possible danger an ap anticipate a driver circumstances, they in the was reasonable proaching an upon inferior may a non- find that the conduct of also yield sign slowing down and heed driver, who was unaware observing necessary yield stopping if reasonable identical danger, way to the in the favored vehicle intersec circumstances, though his ignorance even approaching tion on or the favored possible danger due to his own closely so as to constitute an immediate jury question negligence. The ultimate We have held several times hazard. so the' is whether conduct of stop signs. relative See Austinson v. was reasonable arterial 258; Kilpatrick, N.D., 105 N.W.2d Satter what or light of should saw N.D., 623; Fieber, land v. 91 N.W.2d Mars qualified right to seen. Because óf N.D., den O’Callaghan, v. 522. N.W.2d rely preferred there is no status applicable yield signs. same law is inescapable that a driver inference hadn’t looked highway, an arterial Neither driver The truck speeding. intersecting for cars *8 p. h., 40 traveling at about m. have behaved differ p. vehicle from 60 h. These 50 to m. ently It if he had looked. follows permissible speeds. Boeing vehi- were The looking in not his whether cle, however, yield did the truck not cause, question for was a * * n * traveling upon high- which was the favored jury. way. Upon in I the record this case have no jury doubt that driver was waived and the instant case negligent failing kept proper question in lia- the case was tried appeal bility lookout. He he not see court. On a de novo testified did duty subordinate vehicle judgment until was too late becomes the remains, question court, facts, avoid the collision. The deter- this finders of the as 718 observing
mine whether an driver would explored circumstances. We this reasonably prudent proceed have been in matter in Ryan, 428, Krause 344 v. Mich. ing through the cir 20, 22, the intersection under 74 N.W.2d holding that: say cumstances. To conduct of an “It is necessary in observing driver in the circumstances was as we said in Arnold reasonable but that the conduct of a non- Krug, supra, v. Mich. [279 702] observing was not reasonable N.W. that he [273 ‘have his car 322] identical logically circumstances would be * ** under such control that he It duty inconsistent. is therefore may stop at once and collision avoid this court to find at what persons may illegally who come of the (the truck) favored vehicle path.’ into Lacking his notice other- approach had observed inferior of the wise, may assume using that others vehicle should take action to avoid col highways comply with the rules nin Supreme lisio the intersection. The properly the road and posted signs question of Michigan Court this discussed and he guilty is not contributory Rabaut, in a similar case in McGuire v. negligence in acting upon such assump- 230, Mich. page 92 N.W.2d at not, tion. It however, should as- thereof, they wherein state: from the sumed foregoing may that he proceed blindly upon arterial, the' se- case, difficulties cure in supposition can do other arterial versus subordi- wrong. no must He remain alert to the cases, nate apparent street arise from an hazards surrounding him and with conflict 2 equally between sound which he is confronting others. We do equally applicable principles of law. The propose attempt an enumeration first is that a high- driver on an arterial various actions of him. way is entitled to assume subordinate So far question as the in this case is yield right way. drivers will him the concerned, he is undoubtedly required anticipate He is not bound to unlawful to make observation of the ap- traffic or negligent part. acts their At the parently to path cross his from inter- time, however, same the favored driver secting streets and reasonably to act must conform to the standard of due light of such observation.” imposed upon care him as well as the mankind, namely, rest of that he shall favored is thus not re- quired exercise reasonable care for his own to have his car under such control protection. actually But what does this as to be able to avoid with a collision mean in terms of arterial ? travel There- subordinate coming illegally into problem. importance lies our Its path. point, then, his At what does motoring public may justify its com- principle (that second exercising rea- prehensive re-examination. sonable care his own come protection) operation, into requiring him to take clear,
It extreme, is at the one that the steps to avoid collision with a subordinate permitted favored driver is not to lower Only driver? at that his when head, his eyes, close charge continuing (which observations he must blindly through intersections make, despite the fact that he is on an theory that “right” simply such reveal, arterial highway) or should because he is the It driver. veal reasonably to the prudent man, an Holmes “such said impending danger. Justice this time ‘right’ words as are a constant solicita- duty that his respect of care with *9 fallacy.” tion to The favored driver’s arises, the subordinate driver his and rights are not so broad. It his remains post-observation negligence, lack or there- duty to exercise care reasonable under of, is measured his actions after this Peyerl, N.D., 1, In Henke the case before us v. N.W.2d point. Consequently,in assume, to held, Syllabus 4, the favored driver was entitled we at as follows: inter- approached Hastings as he upon through A a driver is way section, right would not of his approaching entitled to assume those by a driver. be subordinate contested obey stop. it will the law and He is not rely upon this as- to He was entitled obliged to have his car under such con- (or, him clear sumption until it became to intersecting may trol at each he road that man, until, considering aas reasonable stop at once a with and avoid collision pertinent surrounding of circumstances persons may illegally into his come terrain, have been and it should traffic path. him) clear to subordinate his challenge or obstruct going to thereof, 7, And in the page text at we said: duty to way. At this his of operator aof vehicle on an arterial impending attempt collision to avoid has a that one to assume onward, and began. this an intersecting highway on before, crossing respect to a not with or proper speed, crossroad will drive at a path, in his appearing subordinate respect right-of-way and the former’s will to acts determine that we scrutinize his stop entering and crossing before or guilty or whether not he highway. Though neg- arterial is not reasonably prudent for failure to act ligence for on act as- him, and, we person, in all fairness to sumptions of this nature until he or light his conduct must measure reasonably knowledge to the should have if emergency presented, then contrary, bound, acquiring he is after making. his care knowledge, such to exercise the * * * an ordinarily prudent person. determining degree care practical The above are reasonable and into an quired proceeds aof motorist who applications of law. An exhaustive an- signals, protected by electric intersection questions on notation this and other similar Stelmachuk, we follows Kuntz v. held as are Many is found in A.L.R.3rd 180. cases 810, N.D., 816: 136N.W.2d set forth in annotation which hold that conduct, stop reach- stop sign signal on at a or Whether driver’s failure protected by ensuing electric cause col- intersection sole up signals, the standard of measures lision with vehicle a favored required under circumstances page care See 450. A favored driver is § required must be determined the facts of have his car under such con- con- may bring stop time of such trol he at case which exist each presence sig- approaches upon theory of traffic duct. While intersection danger dispute nals at the intersection lessens the some reckless driver degree passage. bring thus lessens the care re- traffic This would quired proceeds purposes on a highways practical of motorist who arterial for all lights proper light, complete stop. in- existence such At each successive away necessity does not do with the would have to tersection arterial driver part care some caution slow down and at blind corners he would care literally such He must use for- motorist. still to ease danger that con- until crosses commensurate ward into intersection place to exist. He blind threshold vision tinues cannot subordinate upon light, stop reliance or condi- lest be unable to suffi- prior entering danger The purpose tions which he cient threatened. observes * * * highways is move through the intersection. volumes *10 relatively pur- traffic at high speeds. then the Such too close to intersection pose accomplished applica- cannot be our collision. I therefore avoid conclude tion of of does not observing driver, the standard due care similar conduct of vehicle, take into account the function the arterial the was aware of through care, or the riding pos- Due for which and deceased was through driver on a highway, danger includes the sible at the would right that be he will been reasonable in and afforded the the circumstances way. that, therefore, assumption may upon This be relied the conduct of defend- aware, reasonably driver, him until un- non-observing he is or as a ant’s who was prudent aware, of the danger, driver should be that his aware was also reasonable way being though possible even challenged. ignorance is Under dan- above, the law ger negligence. as discussed I think was due For which to his own reasons, applied case, should be this feel the these I find I judgment of the trial court dismissing keeping defendant’s driver in not a lookout action should be affirmed. was not a cause of the collision resulting in the death of de- The trial court found that the driver of I judgment. ceased. would affirm the defendant’s truck was obliga- under no tion to danger sense until the vehicle in KNUDSON, J., concurs in the dissent which riding deceased was reached had the Chief point distant from within intersection Justice. which the vehicle in which the deceased was Rehearing. On riding stop, point could brake ato was 128 the intersection, feet from and that the driver of the defendant’s truck was en- STRUTZ, Judge. assume, titled to had he seen the other vehi- respondent petition filed cle, that the driver of that vehicle would rehearing. First, opin- contends spect way his right of until became majority case reverses ion of this aware the not going latter was do so. court, principle findings a trial The trial court also found that had jury, a case tried to the court without driver of the defendant’s truck seen the in- given appreciable weight. will be It also vehicle in which the riding deceased was quires if the the trial court decision of before reached east 128 feet against respondent clearly the evidence—as still intersection he un- have been contends must in order for this court
able to avoid findings the collision. These just where evidence reverse— by the trial support court have in the evi- contrary trial court’s decision. appreciable dence. Giving weight to trial findings, adopt court’s I findings its respondent We believe correct. misapprehension laboring under a I find that when subordinate vehicle scope appeal of an in a case tried to atwas about feet distant jury, without a in which a court demand reasonably person intersection prudent trial de for a novo is In North made. driving the defendant’s truck the Dakota, when is made for trial demand through highway impending would sense properly de included in the state novo danger. point duty At case, this of care arose case, ment done in as was this respect to the subordinate vehicle. find the this court facts anew. post-observance negligence that, finding lack thereof We have held facts —or —must be anew, measured give weight defendant’s driver’s will appreciable we actions point. Taking findings principle after into con- But the trial court. respective sideration the speeds appreciable weight findings all giving other circumstances defendant’s vehicle of the trial court not relieve us
721 ception ruling there to the court’s was facts finding the responsibility of duty and part the the Cardinal negligence on of facts. law those the to applying anew and of to Company for failure on Petroleum provides that specifically statute Our keep a will be But proper tried lookout taken.” in a case de novo trial demand for try respondent just then asks where a driver shall supreme court jury “the without a in a 28-27-32, highway on a relation to favored stands Sec. questions of fact.” anew highway, vehicle on a servient and what N.D.C.C. point in approach to the intersection court duty of this Thus is the it proceeding due negligent becomes in without by the court any tried appeal, in action care. questions jury, try anew a without retrial demands a appellant fact if of upon highway which the And, applying the in the entire case. of being operated was was defendant’s vehicle reviewing tried in a case principle that not a controlled access was appreciable weight jury, a without county merely the in highway, a was court, findings of trial given to the Boeing tersecting highway on duty its lawful of will not this court avoid the de being vehicle driven. While was questions fact in trying all anew of equipment being a fendant’s was driven on (N.D.), Spielman entire case. v. Weber highway made the favored road which was 118 727. N.W.2d way “yield” high by signs placing it, give fact ways did not which crossed sup- by respondent The cases cited equip operator defendant’s any is port that if there of its contention high proceed ment the down that right to findings support the evidence to maintain way without due care and without affirm, are court, trial court must this proper a lookout for other vehicles a trial that do not have cases from States clearly entering it from roads. This is side North to that of de novo statute similar by placed on sign the fact that a evidenced apply it The rule would us Dakota. feet from highway such favored ap- apply in quite rule we similar to the intersection notified drivers on favor peals upon a a ver- judgment based from junction ed a ahead. there was New- jury. dict Under so-called have an Thus the did not absolute defendant 28-27-32, law, man North Dakota Section approaching from way over vehicles Century Code, appeal judg- from a road, rules a side Under the road. upon findings ment of a trial based Boeing vehicle which applying that prohibited court we are from yield, riding intestate Instead, rule. find facts anew. we must primary duty and the to avoid collision by supported long This line conclusion is on the rested favored of decisions. However, driver. re also 'was driver on respondent The next raised quired due care and main exercise opin- dissenting statement in the relates to a approach tain proper lookout for traffic duty ion this that it is the this case highways. from ing the intersection inferior court determine what the driv- “at (the truck) if he er of the favored vehicle driver had the inferior approach had observed the approaching duty exercising due care vehicle should take action to avoid collision that when We find the intersection. in the intersection.” sign 500 feet was warned Respondent junction an inter concedes that section, duty determine negligent in became the defendant’s vehicle was approaching. lookout, there traffic failing keep proper says: whether As in Anderson v. Schreiner purposes “For the ex- we said petition no (N.D.), N.W.2d negligence of even though one of such drivers was re- nonobserving quired driver is in not maintaining greater degree to exercise a lookout. Whether such care exercise of due care than was *12 mote or is cause the col- the driver the highway. on lision in de- which occurred intersection petition rehearing The for is denied. pends upon he what does as a result of not Here, maintaining a defend- lookout. PAULSON, JJ.,
ant’s driver con- continued intersection ERICKSTAD into and slowing speed slightest. without in the cur. looked,
Had he he would have seen that Boeing negligently of the car was TEIGEN, Judge (on petition Chief for yield. failing to question Thus the is wheth- rehearing). er conduct of defendant’s driver light was in he Again, correctly reasonable of what would the majority has stated proper have seen he question had maintained a look- failed before the court but has out. When he saw—or have seen— should They question to answer it. state the negligently failing yield, other driver to opinion petition rehearing, their for as a person reasonable have he would tak- follows: en to steps avoid the these collision. Under question is whether the “Thus conduct circumstances, failing to driver reasonable steps observe resulted in his take failure to light he seen what would have collision, reasonably to avoid as he proper had he maintained a lookout.” Boeing would have done had seen the vehicle. They attempt byit stating: then to answer “When he saw—or should have seen—the duty of the driver of the yield, negligently failing other driver to yield way right vehicle to person as a reasonable have did give the defendant’s driver the steps taken to avoid the collision.” right exercising to drive without due care. A driving motorist highway protected aon However, they have no facts from found by “yield” signs proceed cannot observing which that an driver to conclude assumption that he right absolute steps could have taken effective to avoid way circumstances, under all and that after the where he would collision every other about to epter have “negligently seen other driver was intersection from an inferior Nor, failing yield.” they found will, question, yield right without observing what would have way words, to him. other the driver of “negligently that the other seen driver was vehicle,, the defendant’s the right who had yield.” failing to way, could not exercise that in an majority has alluded two addition- arbitrary paying manner and without some al facts as additional for their reasons any hold- attention whether there was other ing, “junction” sign (1) there was vehicle the intersection be intersection; feet (2) from the and op cause an approaching might vehicle upon the defendant’s negligent erated manner. The su being operated perior not a “controlled privilege having merely way highway, that it was access” but give did of the defend county facts has ant’s Neither of these right wholly disregard vehicle the questions bearing before the rules which on the him to drive with clearly due in this case. The record keep care a reasonable court lookout duty other traffic. The that defendant’s driver avoid an establishes drivers, upon highway; accident both of with the knew rested familiar that es- location, found from the evidence facts and that it was not its rights liability. tablish by “yield” signs and controlled classifica- upon either duties of drivers syllabus, numbered In the additional county or “controlled highway, tion of opinion petition on the for rehear- added same, “yield” signs access” are the where says: majority ing, lawfully place. are “ * * * it is reasonable assume We trial de novo. appeal This is here'for * * * * * * slowed he would have proof to find the facts. The burden are ”* * * when he saw plaintiff prove her cause *13 However, If the record does not establish assumption. action. I think fair this is evidence that was preponderance syllabus that such does not establish observing for an not reasonable I have avoided the collision. action would circum- the truck these driven under in this case think the record establishes it, as the driver drove stances then late. too and that such was a rehearing. grant I would failed plaintiff has injury, cause of proof and cannot burden of to sustain the KNUDSON, opinion majority J., concurs. my
recover.