Armstrong v. McDonald

4 N.W.2d 191, 72 N.D. 28, 1942 N.D. LEXIS 107

• Court: North Dakota Supreme Court
• Decided: May 28, 1942
• Docket: File No. 6811.
• Status: Published

Opinions

Burr, Oh. J.

This is an appeal from an order denying a motion for judgment notwithstanding the verdict, and from the judgment entered.

The plaintiff, while on a- street in Minot, was injured in a collision with an automobile belonging to the defendant Specialties Company and driven on its business by its employee, McDonald. Plaintiff alleges the collision was caused by the negligence of the defendants '; sets forth his claim for damages, and asks for judgment against both.

The gist of the defense is summed up in ¶ 3 of the answer:

“ . the defendants deny that any injuries or damages that the plaintiff sustained were caused by the negligence of the defendants, but contend that any such injuries or damages were caused solely by the negligence and carelessness of the plaintiff in walking into the automobile of the defendant, the Office Specialties Co.”

A verdict was rendered for the plaintiff against both defendants. The defendants based their motion for judgment notwithstanding the verdict upon the grounds that the court erred in denying their motion to dismiss the case at the close of the plaintiff’s case; erred in denying the motion for a directed verdict at-the close of the entire case; that the plaintiff failed to establish any negligence on the part of the defendants; that the testimony of the plaintiff himself conclusively shows that he “was guilty of gross negligence which conti-ibuted to his injuries and was the proximate cause thereof” in that the collision was caused by the plaintiff’s walking “directly into the side of the automobile driven at a minimum or moderate rate of speed, and that his negligence in so doing was the proximate cause of the injuries which plaintiff claims to have suffered.”

The court overruled the motion; judgment was entered; and on appeal, defendants specify as grounds of appeal that the court erred in denying the three motions stated.

On this appeal, this court determines merely whether there was evidence in the ease upon which the jury could base the verdict as returned.

A motion for judgment notwithstanding the verdict does'not go to the weight of the evidence, and such motion should not be granted unless the moving party is entitled to judgment as a matter of law. Such judgment is not to be ordered when there is evidence on the issues in dispute, requiring a submission of the matter to the jury. La Bree v. Dakota Tractor & Equipment Co. 69 ND 561, 288 NW 476.

We scan the evidence “to ascertain whether there is any conflict on substantial matters which requires a submission of an issue to the jury; and if there be such conflict then the motion is denied properly.” State ex rel. Brazerol v. Yellow Cab Co. 62 ND 733, 245 NW 382, 383. In this respect, we “adopt the view of the testimony most favorable to the plaintiff.” Pederson v. O’Rourke, 54 ND 428, 430, 209 NW 798, 799.

There are but two points to keep in mind. Does the record show evidence upon which the jury could find the defendants were negligent? This includes examination to determine whether the collision was caused by the negligence of the plaintiff himself. If there be evidence showing the accident was caused by the negligence of the defendants, we then determine whether the defendants have shown the plaintiff guilty of such contributory negligence as precludes recovery on his part.

The plaintiff was crossing the street at the place where he had a right to be. There is conflicting testimony as to what part of his body was struck by the car. lie testified that at about four o’clock in the afternoon, as he started to cross the street, he stopped to see if the street were clear; saw no moving cars; started across; got about two-thirds of the way across; the driver of the car did not sound any horn, or otherwise warn him, and the first thing he knew he was hit, thrown to the pavement, knocked unconscious, and the car ran over his leg. His brother testified he saw the accident plainly; that the front bumper of the car hit plaintiff on the right leg, doubling him back so that he fell on the sidewalk, and that the driver of the car told him the light had blinded his eyes so he could not see the plaintiff.

There is testimony by one Simpson tending to show plaintiff failed to observe the usual precautions of looking and listening as he crossed the street; that he was not looking where he was going. There is testimony by defendant McDonald tending to show that he had stopped when he came-to the intersection, .then started, proceeded slowly, was affected by a glare and did not observe danger until plaintiff ran into the car, and was hurt. These four are the only witnesses who saw the accident. One witness testified as to the width of the street, and another testified as to marks on the car and on the pavement. This testimony was offered as contradictory to the testimony furnished by the plaintiff.

Negligence, whether contributory or primary, is a question of fact, never of law, unless the established or conceded facts from which the inference must be drawn admit of but one conclusion by reasonable men. Bagg v. Otter Tail Power Co., 70 ND 704, 297 NW 774. The jury resolved these contradictory statements in favor of the plaintiff; and so we agree with the trial court there was evidence to submit to the jury upon which the latter could find the accident was caused by the negligence of the defendants.

The alleged contributory negligence of the plaintiff is based on the same facts — that is, actions of the plaintiff at the time he was crossing the street at a place set apart for pedestrians. For the jury to find for the plaintiff it was required to find the accident was caused by the negligence of the defendants. The evidence to substantiate this is the evidence that negatives sole negligence or contributory negligence on the part of the plaintiff.

The trial court reviewed the case carefully, discussing the conflicting testimony, and denied the motion for judgment notwithstanding the verdict. We have examined the evidence sufficiently to determine that there was competent evidence requiring the submission of all of the controlling issues to the jury. This being so, and the jury having found for the plaintiff, the trial court was required to deny the motion for judgment notwithstanding the verdict. The order and judgment, therefore, are affirmed.

Christianson and Nuessle, JJ., concur.