| N.D. | Nov 10, 1916
Assignments upon refusal to direct a verdict challenge the sufficiency of the evidence to sustain a $2,500 verdict against defendant as damages from a motor cycle and automobile collision.
Defendant resides at Buxton. On Sunday, July 12, 1914, with his family he went by automobile 18 miles to Mayville, where a Chautauqua was being held. He left Mayville for home about 6 p. m. Two other autos, driven by Knudson and by Gunderson, left just ahead of Sorlie, running in that order. They met plaintiff coming on his motorcycle, 6 miles out. They were going east and plaintiff west. Less than a mile intervened between the lead machine of Knudson’s and Sorlie’s automobile. Plaintiff met and passed the autos of Knudson and Gunderson, overtook and passed a team, and then met and collided with Sorlie’s machine. Plaintiff broke his leg, necessitating its amputation.
At the place of the,accident the main traveled roadway ran to the extreme left and north side of a wide crowned but somewhat rough highway. From ditch to ditch the driveway was wide enough for three
Plaintiff assumes (1) that Sorlie was negligent in being upon the left side of the highway (although within the traveled roadway) instead of upon the untraveled right side of the highway; and (2) in not having his machine under control because of alleged high speed at which plaintiff claims Sorlie was traveling. Sorlie asserts that he had a right to be where he was, exactly in the route of ordinary travel, and hence was not negligent; and also that he was not driving at more than 15 miles an hour at the time, and was not negligent in any way, but was doing his utmost to get out of plaintiff’s way when plaintiff dashed into his rig. And Sorlie claims that the uncontradicted testimony establishes conclusively that plaintiff caused his injury by his own contributory negligence in failing to slacken his speed or control his motor cycle while attempting to pass defendant at a high and excessive rate of speed.
The first contention that defendant was upon the wrong side of the highway, and that negligence based upon that fact alone can be assumed, is untenable. While the highway to the south might have been traveled had it been necessary to do so, it was not the generally traveled roadway, otherwise the ruts would not have been worn. The remainder of the highway was practically untraveled. As defendant was but traveling where all others drove, he was only doing what all others had done, and therefore could not have been negligent in merely following that roadway instead of a rougher one elsewhere. The very definition of negligence imports a departure from the usual conduct of the ordinarily prudent individual. And as Sorlie, in doing what he'was and what others generally had done, was not departing from that standard, but instead only following it, the assumption of negligence assumed by plaintiff at the outset is erroneous and unsound.
And now to examine the other alleged negligence of defendant, and the contributory negligence charged against plaintiff. The two may best be considered jointly under a recitation of all the facts in evidence bearing on them.
Plaintiff had left Hillsboro at 6 or a quarter to 6 at approximately the same time that Sorlie and accompanying autos had left Mayville. During the time intervening before the collision plaintiff had run 16 miles. Sorlie had gone between 5 and 6 miles during the same period. Comparing distances and elapsed time, plaintiff must have traveled nearly three times as fast for that period as Sorlie had traveled. Plaintiff had gone north from Hillsboro through Taft and Cummings, going a mile out of his way and back between the latter place and the highway bearing straight into Mayville, a mile and a half ahead of the place of collision. His undisputed record of achievement of speed and its consequences from the time he left Hillsboro is in evidence. He met or passed half a dozen rigs and automobiles on the trip before the collision, and in every instance the drivers met or overtaken took to the ditch because of the excessive speed at which plaintiff came down upon and passed them. This is undisputed. The nearest plaintiff comes to contradicting it is that he did not notice or observe who he met or where they w^ent.
Plaintiff testifies that he had a drink of whisky at 10 o’clock the.' forenoon; and that he had been to a beer party a mile out of Hillsboro until just before supper. He admitted having drank at least four glasses of beer and might have had five, as a keg of beer was on tap all that afternoon. ...............
He next met Holtz and Odegard, the latter driving, and this second machine, quoting Odegard’s testimony, “went into the ditch. I had to go as far as I could to the west side of the road to give him the east side; happened to notice him coming and that he was going rather fast.” Holtz, riding with Odegard, says they remarked about plaintiff’s speed, and that Odegard said: “Look at that fellow coming.” This statement clearly admissible was erroneously stricken out as hearsay. It was a part of the facts of the trip, the res under investigation. That the statement was made strongly evidences the unusual.
Holtz continues:
“Well, he come up the road tearing, and Odegard turned out for him, of course, in the ditch as far as he could get, and he come along the road just in this shape.
Q. Swinging back and forth ?
A. Yes, and he was coming pretty fast, going from one side of the road to the other, as he was coming towards us.
Then plaintiff approached Dr. Knudson’s auto, Gunderson’s-auto, Tolsby’s team, and Sortie’s auto, all four rigs strung out behind one another, and with Knudson’s in the lead. The drivers and the occur pants of all these rigs all agree that in every instance plaintiff did not
Q. Did he slow up when he approached and passed your ear ?
A. No, sir.
Q. He went by apparently at the same speed as when he was far ahead of you ?
A, Yes.
Mrs. Knudson says, “He came pretty fast; we turned out for him; he came pretty fast, I could hardly see him,” and just as he went by she exclaimed, “Oh my! he goes fast.”
Oscar Hanson, riding in the front seat of Dr. Knudson’s auto, testifies that his best judgment as to plaintiff’s speed when he passed their car was “from 40 to 45 miles an hour.”
Q. Did he seem to sIoav up as he approached your car ?
A. No, he kept the same gait.
Q. State what you did as you approached him.
A. The doctor swung his car on the right into the ditch.
Q. Did you notice any exclamation by any one of those in the car as he passed you ?
A. Yes, Mrs. Knudson hollered, “Oh my!”
.Geo. Gunderson was driving some distance behind Knudson and ahead of Sorlie and also east of Tolsby’s team. He had driven autos for two years. He says that “as he passed me I turned out in the ditch and he went past me pretty fast.”
Q. At the time he approached you, as you met him, state whether or not he sloAved up any.
A. He did not slow up.
*403 Q. Was lie using the same speed when he passed you, as far as you could tell, as he used when he was some distance ahead of you ?
A. It looked that way.
Q. State whether or not you were off the traveled part of the road as you passed him.
A. Yes, I went off the road entirely.
Q. Did this man on the motor cycle make any attempt to turn out of the road or not ?
A. No.
Gunder Ashiem, riding in Gunderson’s car, gave similar testimony as to the way plaintiff approached and passed, and states as his best estimate of the speed at which plaintiff passed their rig immediately ahead of Sortie’s as “about 60 miles an hour,” and that he didn’t slow up. When asked, “What is the lowest you are positive he was running ?” answers, “The lowest was about 40 miles, but I think he went 60, that is my honest opinion.”
Carl Vigestrand, also riding in Gunderson’s machine, likewise places plaintiff’s speed at from “60 to 65 miles an hour,” and adds, “When he passed our car, I looked back; I thought possibly he might take a tumble, he went so awful fast.”
Plaintiff next overtook and passed Anton Tolsby going toward May-ville and only a short distance ahead of the point of collision. lie also get off the road. He says: “I turned right out, right out through the ditchand that plaintiff in going by him “went pretty fast and I should judge 35 or 40 miles an hour, just right close to the horses. He kept the road and made no attempt to give me any room or turn out.”
Sorlie was asked to describe the circumstances preliminary to the collision and replies:
Just as the motor cycle got over the rise and as soon as I distinguished what it was I started to turn out of the rut, — I was in the rut, and I got the front wheels out of the rut, but the hind wheels slid in the rut and I could not get them out, and before they got out he was there and struck the hind end of my machine.
Q. He passed the front of your machine safely ?
A. Yes, the front was out, I got that out, and if the rest of the machine had gotten out when the front part came out, we would have been out to clear the man easily.
Plaintiff testifies that his motor cycle that day “was running, but it wasn’t running right; there was something wrong with the cylinders; it kind of bound in the cylinders.” That he left Hillsboro “about 6 o’clock, or a little before;” he describes his route; was going “at the time of this accident I think about 15 or 18 miles an hour.”
Q. And can you tell and give the jury an idea about how fast the auto driven by Sorlie was going ?
A. No, I hardly can, it seemed it was a good speed, I can’t say how fast it was [That he] was riding along on the right side till I met this fellow Sorlie.
Q. Tell the jury how it happened.
A. Well, just when I met him he was just turning the'front wheels a little I guess.
Q. Do you remember the collision, do you remember coming together there ?
*405 A. Yes, just when we struck, just before the accident he turned his front wheels out of the rut or tracks where the front wheels were to the south of the road. [lie had no speedometer on his motor cycle.]
Q. I want to ask you just how close to the traveled part of the road, the part of the road used for the wagons, was the north ditch ?
A. There was just a few inches.
Q. About how many ?
A. Probably a foot or so.
Q. Now I want to ask you if there was a traveled portion to the south, —was there a road traveled over south ?
A. It looks to have been traveled there, but not so much as on the other side.
Q. Where was the road the smoothest on the north track or on the 'south track ?
A. The north track.
Q. When you saw this man on the north side of the road, the same side that you were on, why didn’t you stop your motor cycle ?
A. Of course I expected Mm to turn out the same as them others did.
Q. Well, after you got nearer to him and saw he wasn’t turning out, why didn’t you stop your car (meaning motor cycle) 1
A. I never had time to stop, and then, of course, he was comrng aw fid fast and struck me like a bullet.
Q. Why didn’t you get in the ditch ?
A. The ditch was kind of deep on the north side. It was near square up and down, and I probably would kill myself to go out there.
Q. How far was your motor cycle from the ditch, as you were going along ?
A. As close to the ditch as I possibly could.
Q. And you couldn’t get by the machine ?
A. No.
Q. Were you going as fast when you met Sorlie as you were when you met Dr. Knudson ?
A. Of course, I see — I thought that — I didn't think he could control his auto and when I saw that I turned the gasolene of, but it was too .late.
Q. Turned it all off ?
*406 A. Yes, but it was too late to do anything, of course, I couldn’t do anything to save myself then before the strike.
The foregoing is all in response to his own counsel.
On cross-examination he testifies:
Q. Was there sufficient room there for you to pass if you had turned to the left of Sorlie’s machine, as you wanted to ?
A. Well, if I turned right away when I passed the second automobile.
Q. What is that ?
A. When I passed the second automobile I probably could, but I expected him to turn the same as everybody does till it was too late.
'As corroborative of plaintiff’s statement that he was going at a low speed, he has offered the testimony of Johren, who saw plaintiff from a distance of a quarter of a mile, half a mile from the place of collision, and who says that his “best guess” was that when witness saw plaintiff, the latter was making 18 or 20 miles an hour. Dunley, who had repaired the motor cycle sometime before, said he had reduced the speed of it somewhat to take a knock out of it, so that it did not go as fast as a new one, but that he couldn’t tell what speed it would develop. And one Lerum also testified that the north rut was 1-J inches or so deep and only about a foot from the ditch on that side. This fairly and accurately states the testimony upon which the jury found that Sorlie was negligent, and that his negligence contributed to plaintiff’s injury, and that plaintiff was not guilty of contributory negligence.
It is impossible to read the record without coming to the conclusion that the facts were that plaintiff was running at a high rate of speed-from Hillsboro to the scene of the accident, and wit-h little regard to his own safety or the safety or rights of others. Without exception, every rig he passed went into the ditch to avoid him. It is significant also that everybody he met noticed that Nordby was going “awful fast,” and that several of them remarked about it; and that all agree that at no time did he slow up as he approached, but “whizzed” by at full speed. The-distance that .he had come in the elapsed time is corroborative proof of sustained excessive speed. He does not claim to have turned out or slowed up, not even in meeting Sorlie, except, as he says, “when it was
Eliminating, as we must, the fact that Sorlie was on the north side of the road, the proof discloses that he did nothing negligent, neither did he omit to do anything that a reasonably prudent man could have done to avoid the accident. Admitting for the sake of further analysis plaintiff’s testimony that Sorlie appeared unable to control his machine and because thereof was negligent, and that the same contributed to the accident, nevertheless under the undisputed facts and every reasonable inference therefrom, and from plaintiff’s own testimony and admissions, plaintiff was guilty of want of control and therefore guilty of contributory negligence. He says he made no attempt to get out of the rut, and the only reason he gives for it was, “I probably would kill myself to go on therei. e., to his right and into the ditch, which he says in the same breath “was pretty near square up and down.” It can be assumed that the situation in which he had placed himself was a dangerous one, yet the very situation conclusively proves that he had no control over his machine. When he had shut off the gasolene, he was too close to the approaching automobile to avoid collision. It is a self-evident fact that had he been in control and using the degree of care required of him, he with safety could have either run his machine into
' True, it was Sorlie’s duty to use reasonable diligence to obey the rules of the road and clear for the plaintiff the north pathway of the roadAvay. But the law does not make Sorlie an insurer of his ability to do so, as “the width, condition, and use of the highway at the time” are to be considered Avith the rules of the road in that respect.
To hold otherAAdse would make him an insurer against the results of unavoidable accident, as well as culpable negligence of the approaching party, and announce a rule of law that would permit an approaching vehicle like plaintiff’s to dash ahead at full speed reckless of road conditions, with the Other party an insurer against such recklessness. The duties OAAÚng by each driver toward the other are reciprocal, equal, and alike, with no advantage of one over the other, under the laAv and the rules of the road. It is clear from plaintiff’s testimony that he failed to realize that he OAved any such reciprocal duty to Sorlie, but instead assumed that the latter must get out of his track’ in any event and Avould do so, and that- he was excused from exercising any care for his own safety. Plaintiff was bound in laAv to be in a position to alloAv Sorlie time to get out of his track, as admittedly he was endeavoring to do. If plaintiff’s recovery can be sustained under this proof, it is hard indeed to conceive of such a case where a recovery would not be upheld. When, from out of plaintiff’s own mouth, accompanied by the unquestioned and undenied proof of his previous and almost contemporaneous
And the paucity of plaintiff’s proof as set forth iñ his own brief well illustrates the extreme to which plaintiff’s counsel has been driven in his attempt to uphold this verdict and establish his major premise that all the evidence without contradiction does not favor defendant. He calls attention to what he claims was the fact that “plaintiff had no difficulty in meeting or passing vehicles on the highway, other than the defendant’s auto.” The reason is plainly apparent from the proof. Of course he did- not, because, under the uncontroverted proof, every vehicle without exception took to the ditch in meeting him or when overtaken by him. He says “his motor cycle was not in condition to develop speed on that day.” To find this to be fact would ignore the established fact that plaintiff had gone more than twice as far as Sorlie in the same length of time, as well as also to overlook the testimony of ten witnesses estimating plaintiff’s speed immediately preceding the accident (and all of which testimony is undenied by plaintiff himself) variously at from 35 to 65 miles an hour, and corroborated by contemporaneous occurrences and remarks made.
And in the same way plaintiff’s statement that he was not riding to exceed 15 or 18 miles an hour on meeting Sorlie is condemned as untrue
Plaintiff lays emphasis upon the proposition that questions of credibility were for the jury, and has attempted to discredit about all of defendant’s witnesses by reason of friendship, acquaintance, or association with Sorlie. Of course, .credibility was for the jury. But the main and decisive facts are out of the mouth of the plaintiff or stand admitted.
When the motion for a directed verdict of dismissal was made at the close of the case with the entire history of plaintiff’s trip that day in evidence and undenied, taken with plaintiff’s own testimony, there was no issue for the jury upon whether plaintiff was guilty of contributory negligence. A finding that he was not guilty of contributory negligence cannot be upheld. The case should have been dealt with accordingly. The judgment and order appealed from is ordered reversed, and judgment of dismissal of this action is ordered.