Clark v. Feldman

*744 Birdzell, J. This is action to recover damages alleged to have been sustained by the plaintiff through the negligence of a servant of the defendant in driving the defendant’s delivery truck upon and over the plaintiff as he was crossing the street in the city of Devils Lake. From a judgment in favor of the defendant entered on the verdict of a jury *745 and from an order denying the plaintiff’s motion for a new trial, the plaintiff appeals to this court. The salient facts are: That on the morning of July 30, 1927, between 8 :00 and 9 :00 a. m., the plaintiff Clark, a man nearly eighty years of age, walked down the east side of Fourth avenue, in Devils Take. At the intersection of Fourth avenue and Fourth street, he turned to the right to cross the avenue. As he was crossing toward the west, the defendant’s delivery truck, being operated at the time by one Melhouse, came upon him, struck and seriously injured him. The plaintiff’s eyesight was good and he testified that he looked but saw no car coming. There was no obstruction in the street or nothing, so far as the record shows, to interfere with the vision of the driver of the truck. He testified that he was driving not over twelve miles an hour; that as he approached the intersection of Fourth street and Fourth avenue he saw the plaintiff standing by the lamp post at the curb and a little north of the intersection; that as he was driving up the avenue the left wheel of the car was about the center of the street; that he next saw the plaintiff right beside the' car and a little bit north of the pedestrian’s lane marked upon the pavement at the intersection. Clark was about three feet from the car when the witness observed him and had he stopped he would not have been struck. The witness applied the foot brakes as quickly as he could, stopping the car within about twenty feet, or, as he explained later, within twenty feet of the north line of the pedestrian’s lane. From these facts alone there can be no question in our judgment but that the questions of negligence and contributory .negligence were for the jury. It is needless to recite the testimony as to the circumstances of the collision. It appeared that Melhouse had been employed by the defendant for several weeks before this time to operate the truck in question for the purpose of delivering groceries; that he was in the employ of the defendant at the time; that the defendant was not in town on the morning of the accident; that Melhouse had gone to the store that morning, which was located about a block north and half a block west of the place where the collision occurred and, after having done some work about the store, took the truck, drove to the depot in the south part of the city, for the purpose, according to his testimony, of mailing *746 some letters of his own on the morning train and that the collision occurred as he was on his way back to the store. There are a number of errors assigned and argued in the brief which, in the view we take of the case, it will be unnecessary for us to consider. We shall consider only the exceptions to the charge. In charging the jury on the question of contributory negligence, the court, after defining negligence, said: “So, in this case, to make the defendant liable it must appear that the plaintiff was using ordinary care and diligence, but it must also appear from a fair preponderance of the evidence that Melhouse was negligent in the operating of that automobile on the street at that time; that is, that he did’nt use ordinary care in running that automobile. In order that Mr. Clark recover in this lawsuit, it must appear not only that Melhouse was acting in the course of his employment, and that he was negligent and careless, but that Mr. Clark was himself free from negligence and carelessness. If you find that Melhouse was acting in the course of his employment, if you find that he was negligent in operating that automobile, and that that negligence brought about or helped to bring about that accident and the injury to Mr. Clark, then you should pass to the question of whether or not Mr. Clark himself, under all of the circumstances, was negligent or careless; and in passing upon that question, have reference to all of the evidence that may apply to that matter or may throw light into your minds as reasonable men. If you find, Gentlemen of the Jury, that Melhouse was negligent, but, on the other hand, you find that Clark was also negligent, and that his negligence or carelessness brought about or helped to bring about his injury, then he cannot recover in this lawsuit. If he was negligent or careless and that negligence or carelessness had anything to do with bringing about his injuries, then Mr. Clark cannot recover. • That would be true no difference how negligent or how careless Mr. Melbouse was in the operation of that automobile.” After the jury had been considering the case for some time they returned to the court room, whereupon the foreman annoimced that there was a difference of understanding concerning the charge, that they could not agree as to the part wherein the court had said that if there was negligence on the part of both parties the verdict should be for the defendant. Thereupon the court said: *747 “Well, I say to you, Gentlemen of the' Jury, in that respect that I first said to you that the case was bottomed on negligence; that is, that if it was just a mere accident without negligence or carelessness of Mel-house, then Feldman would not be liable. That if you found that Melhouse was negligent, careless, guilty of a lack of ordinary care, and that you also found that Mr. Clark had been negligent or careless on his part, and his carelessness or negligence had brought about or helped in some way to bring about his injury, then he could not recover, even though Melhouse was negligent. In other words, under the law, a man who is himself negligent or careless and his negligence or carelessness results in his injuries, he can’t recover damages no matter how negligent the person was who injured him. His negligence doesn’t have to be the entire cause of the trouble, but if the plaintiff’s negligence has any part in bringing about the injuries, he is said to have contributed or helped to bring about the injuries, and is therefore guilty of contributory negligence, that is, negligence or carelessness that contributed to or helped to bring about the injury, and therefore he cannot recover. So, if in this case you find that Melhouse was negligent, and also find that Mr. Clark was negligent, and that his negligence helped to bring about or brought about, or assisted in bringing about his injury, then Mr. Clark cannot recover. Does that answer your question, Gentlemen of the Jury ? Now, in this connection you will have reference to the whole charge, not to just a little piece of it.” It appears that, in speaking of negligence, the court had merely charged that a person who drives a motor vehicle upon a highway carelessly and heedlessly, in willful and wanton disregard of the safety of others or without due caution and at a speed or in a manner so as to be likely to endanger any person, is guilty of negligence. There was in the charge no statement of the difiy of a driver of an automobile in approaching a crossing used by pedestrians to be on the lookout for persons crossing the street and to yield them the right of way. Chapter 162, Session Laws of 1927, § 18, ¶ e. Neither was there any statement as to the right of a pedestrian, as defined by statute, in crossing a street at an intersection or along the prolongation of the lateral boundary lines of the adjacent sidewalk at the end of a block. Chapter 162 of the Laws of 1927, § 18, ¶ c, reads: “The driver of any vehicle upon a highway within a business or *748 residence district shall yield the right .of way to a pedestrian crossing such highway within any clearly marked, crosswalk or any regular pedestrian crossing included in the prolongation of the lateral boundary lines of the adjacent sidewalk at the end of a block, except at intersections where the movement of traffic is being regulated by traffic officers or traffic direction devices. Every pedestrian crossing a highway within a business or residence district at any point other than a pedestrian crossing, crosswalk or intersection shall yield the right of way to vehicles upon the highway.” The plaintiff had made several requests for charges. Regardless of whether these requests should have been given in the form in which they were embodied, they were sufficient to call the attention of the court to the relative rights and duties of the parties at the intersection; that is, they called attention to the duty of the driver to look out for pedestrians and reflected the standard of care required of the latter for their own safety. We are of the opinion that a general instruction on the subjects of negligence and contributory negligence, without a further instruction defining the rights of the parties as they existed under the law then and now in force, as above quoted, was prejudicial in that such instruction did not give to the jury an adequate basis upon which to determine the reasonableness of the conduct of the parties affected. It will be noted that it was upon this very subject that the jury was unable to reach a common understanding of the charge, as appears by the inquiry addressed to the court after they had been considering the case for some time; hence, the necessity for defining the rights and duties of the parties. It is said, 1 Blashfield’s Cyclopedia of Automobile Law, § 9, pp. 291-293: “At crossings, all drivers, particularly of motor vehicles, must' be vigilant in looking for traffic on the intersecting street and maintain such control that on the shortest possible notice they can stop their cars so as to prevent danger'to pedestrians. The fact that on a bright day the driver of an automobile approaching a crossing does not see a pedestrian crossing the street, and who is in plain sight from the time of his leaving the curb until the driver is within 8 feet of the pedestrian, tends to show lack of watchfulness on his part. “Under some ordinances a pedestrian is expressly given the right *749 of way at street intersections, and, although it may be difficult to lay down any fixed rule showing just what rights and privileges this right * of way may give pedestrians or take from the drivers of automobiles, it at least puts the necessity of continuous observation on the driver of the automobile when approaching the crossing. And a motorist who runs down a pedestrian passing along a street at a crossing where the latter has the right of way, with’ sufficient light to be seen by proper observation, is prima facie negligent, although he does not sec the pedestrian.” Section 11, p. 294, reads as follows: “The duty of a motorist to look out for pedestrians applies, not only to those who are vigilant in observing traffic conditions, but also to pedestrians who may fail to observe every approaching car.” On the other hand, it is said in Berry, Auto. 6th ed. § 357: “An ordinance giving pedestrians the right of way over crossings at street intersections in no wise impairs the duty of pedestrians to exercise ordinary care to avoid collisions with vehicles. It means no more than that., when two or more persons moving in different directions approach a crossing at the same time or in such manner that if both, or all continue their respective courses there is danger of collision, then the one having the preference is entitled to the first use of such crossing, and it is the duty of others to give him reasonable opportunity,to do so.” Bolfs v. Mullins, 179 Iowa, 1223, 162 N. W. 783. In another expression, quoted by the same author from Merrifield v. C. Hoffberger Co. 147 Md. 134, 127 Atl. 503, the right of way given to a pedestrian at an intersection is said to mean “that if, while proceeding, his course and that of defendant’s truck woialcl bring them in contact at a given point In pedestrian’s way, he was not required to stop or diverge from his course so as to give the truck the right of way, but on the contrary, under such conditions, it was tifie duty of the driver of the truck to stop or diverge so as to give him' the right of way, and the appellant had the right to assume that this' course would be followed by the driver of the truck, not alone because the consequence resulting from a failure of the driver of the truck to do this would be extremely serious, but for the further aiid controlling reason that the statute required the driver to do so.” In Johnson v. Johnson, 85 Wash. 18, 147 Pac. 649, it Is'said: *750 “If the conceded right of way means anything at all, it puts the .necessity of continuous observation . . . upon the driver of the automobile when approaching a crossing just as the necessity of the case puts the same higher degree of care upon the pedestrian at other places than at crossings.” See Pederson v. O’Rourke, 54 N. D. 428, 209 N. W. 798; Olsen v. Peerless Laundry, 111 Wash. 660, 191 Pac. 756; Jurisch v. Puget Transp. Co. 144 Wash. 409, 258 Pac. 39. The evidence in this case does not indicate with any degree of certainty whether the plaintiff was crossing the highway “within any clearly marked crosswalk or any regular pedestrian crossing included in the prolongation of the lateral boundary lines of the adjacent sidewalk at the end of a block,” so as to give him the right of way within the statute above quoted. If he was not in a place where it was the driver’s duty to yield the right of way under the statute and was crossing between intersections, it was his duty to yield the right of way to the driver. But, in any event, the questions of negligence and contributory negligence must be determined with reference to the standards of conduct prescribed by law. Since the statute makes the relative rights of the parties at intersections to depend upon the position of the pedestrian and since the reasonableness of the conduct of the parties can only be judged in light of the rights given and the reciprocal duties imposed, if they are to be made effective, an instruction that does not take the statute into consideration is erroneous and misleading. It may be added that this statute had been in effect only thirty days when the accident occurred and the record does not show that it was specifically brought to' the attention of the trial court. Nevertheless, the rules invoked in some of the requests for charges were, in substance, made applicable by the statute. Jurisch v. Puget Transp. Co. supra; Russell v. Yergason, 95 Conn. 431, 111 Atl. 625. We are of the opinion that the charge in question was further prejudicial to the plaintiff in that, in stating the effect of his contributory negligence, if any, it practically omitted the element of proximate cause. The jury was told that no matter how negligent or careless Melhouse might have been in driving the truck, if the plaintiff was guilty of any negligence which had anything to do with bringing about his injuries, he could not recover. The jury might well have considered .that the plaintiff was negligent in failing to observe the car coming *751 before he left the curb to cross the street and that it was their duty under the instructions to find for the defendant on this account even though such negligence might have been but the indirect cause of the plaintiff’s injuries. The books are filled with cases where recoveries have been permitted on account of injuries to pedestrians who failed to look for approaching automobiles as they started to cross at intersections. See Berry, Auto. 6th ed. §§ 344-346. Yet there can be no doubt that a failure to look may be found to. constitute negligence as a matter of fact, some of the cases even going to the extent of holding that it may bar recovery as a matter of law. See Knapp v. Barrett, 216 N. Y. 226, 110 N. E. 428. Hence, it is especially important that the element of proximate cause be clearly embraced in an instruction on contributory negligence where the facts are such as the record here indicates. The rule is “that whenever the plaintiff’s case shows any want of ordinary care under the circumstances, even the slightest, contributing in any degree, even the smallest, as a proximate cause of the injury for which he brings his action, his right to recover is thereby destroyed.” Beach, Contrib. Neg. 3d ed. § 35. Or, as stated by Shearman & Bedfield on the Law of Negligence, 6th ed. § 94, “The plaintiff’s fault does not affect his right- of action, unless it proximately contributed to his injury. It must be a proximate cause, in the same sense in which the defendant’s negligence must have been a proximate cause in order to give any right of action. It is, of course, not correct to say that negligence which does not occur at the time of the injury necessarily does not proximately contribute thereto. Great difficulties arise in charging juries upon this point. No jury could ever understand what ‘proximate’ means. In most reported cases, it has been held permissible to say that the plaintiff’s negligence is no defence, unless it directly contributes to the injury; . . .” But the author goes on to indicate that such a definition of “proximate” in an instruction is not tolerated in New York and perhaps not in Georgia. We appreciate the difficulty which has been experienced by courts in applying the law with reference to negligence and contributory negligence since Baron Parke’s announcement in the famous case of Davies v. Mann, 10 Mees. & W. 547, 152 Eng. Beprint, 588, 19 Eng. Bul. Cas. 190, wherein he said (page 549) : “Here it is otherwise; and the judge simply told the jury, that the *752 mere fact of negligence on the part of the plaintiff in leaving his donkey on the public highway, was no answer to the .action, unless the donkey’s being there was the immediate cause of the injury; and that, if they were of opinion that it was caused by the fault of the defendant’s servant in driving too fast, or, which is the same thing, at a smartish pace, the mere fact of putting the ass upon the road would not bar the plaintiff of his action. All that is perfectly correct; for, although the ass may have been wrongfully there, still the defendant was bound to go along the road at such a pace as would be likely to prevent mischief.” This case doubtless states the rule too broadly (see Beach, Contrib. Neg. 3d ed. §§ 11, 30; Shearm. & Redf. Neg. 6th ed. § 99), but numerous cases have since arisen in which a defendant has been held liable for injuries sustained by a party who has himself been negligent. Recoveries are supported according to the doctrine of discovered peril or last clear chance on the theory that the defendant, by the exercise of reasonable care, had an opportunity to avoid injuring the other party; likewise, upon the theory that the negligence of such other party had so far ceased to be operative as not to be considered in law as a proximate cause. In such situations the concurrence of the negligence of the injured party with that c^f the defendant down to the time of the injury is an important consideration, but only in determining the ultimate question of proximate cause. Upou analysis we think the soundness of the decisions involving such questions, in cases where pedestrians have’ been injured in collisions with automobiles, may be tested by the query as to whether or not the plaintiff’s negligence at the time of" the accident may properly be said to have been a proximate cause of the injuries, or whether, notwithstanding his negligence, the injui’ies would not have occurred but for the neglect of some duty owing to him by the defendant at the time, the neglect of which under the ciréumistances is considered in law as the proximate cause of the in-j uries. Tké following cases may be taken as illustrative of situations in which a pedestrian may recover either notwithstanding his own negligence, or on the theory that he was not negligent in assuming that the driver would exercise a proper degree of care for his protection: Russell v. Yergason, 95 Conn. 431, 111 Atl. 625; Smith v. Spirek, 196- *753 Iowa, 1328, 195 N. W. 736; Rowe v. Hammond, 172 Mo. App. 203, 157 S. W. 880; Aronson v. Ricker, 185 Mo. App. 528, 172 S. W. 641; Wittenberg v. Hyatt’s Supply Co. — Mo. App. —, 219 S. W. 686; Smith v. Ozark Water Mills Co. 215 Mo. App. 129, 238 S. W. 573; Andrews v. Parker, — Mo. App. —, 259 S. W. 807; Lyons v. Volz, — N. J. L. —, 114 Atl. 318; Virgilio v. Walker, 254 Pa. 241, 98 Atl. 815; Stephenson v. Parton, 89 Wash. 653, 155 Pac. 147; Olsen v. Peerless Laundry Co. Ill Wash. 660, 191 Pac. 756; Juriseh v. Puget Transp. Oo. 144 Wash. 409, 258 Pac. 39; Standard Oil Co. v. McDaniel, 52 App. D. C. 19, 280 Ped. 993. In view of another trial we deem it proper to comment briefly upon that part of the charge which deals with the question as to whether or not Melhouse was acting in the course of his employment at the time the injuries were sustained by the plaintiff. Without reproducing here that portion of the charge, we would call attention to the fact that it assumes it was the duty of the jury to accept the undisputed testimony of Melhouse, the defendant’s employee, as to the nature of the errand upon which he said he was engaged at the time of the collision, and this, whether or not such evidence was in any way corroborated. The law is that the burden of proof is on the plaintiff to show that the operator of the car was the agent or servant and that he was acting within the scope of his employment (Berry, Auto. 6th ed. § 1340) ; but, quoting Berry on Automobiles, 6th ed. § 1352, “where a servant, who is employed for the special purpose of operating an automobile for the master, is found operating it in the manner such machines are usually ■ operated, the presumption arises that he is running it in the master's service;” (Huddy, Auto. 8th ed. § 795), and this presumption is not conclusively rebutted by affirmative testimony from an interested source which would go to show that the employee was upon an errand of his own. Here there is evidence not only that Melhouse was employed for the purpose of delivering groceries with this truck, but it appeared that he was driving it upon the streets of the city where he would have occasion to use it and during the hours when he would be so using it about his employer’s business. The employer was not at his place of business nor in town. The record contains no conclusive evidence to negative an implied assent to the employee’s use of the automobile upon a personal errand, if he did so use it, for the purpose of saving *754 time, thus advancing thereby his employer’s interest. While the authorities are divided, we think the weight of authority supports the submission to the jury of the question as to whether the employee was engaged in the course of his employment under facts such as are present in the instant case, notwithstanding the denial of the employee that he was so engaged. See Dierks v. Newsom, 49 Cal. App. 789, 194 Pac. 518; Ward v. Teller Reservoir & Irrig. Co. 60 Colo. 47, 153 Pac. 219; Orris v. Tolerton & W. Co. 201 Iowa, 1344, 207 N. W. 365; Snyder v. Eriksen, 109 Kan. 314, 198 Pac. 1080; Hausam v. Poehler, 120 Kan. 119, 242 Pac. 449; Walsh v. Eeinstein, 251 Mass. 109, 146 N. E. 355; Behrens v. Hawkeye Oil Co. 151 Minn. 478, 187 N. W. 605; Barz v. Fleischmann Yeast Co. 308 Mo. 288, 271 S. W. 361; Chambers v. Kennedy, — Mo. —, 274 S. W. 726; Schultze v. McGuire, 241 N. Y. 460, 150 N. E. 516; Stumpf v. Montgomery, 101 Okla. 257, 32 A.L.R. 1490, 226 Pac. 65; Doherty v. Hazelwood Co. 90 Or. 475, 175 Pac. 849, 177 Pac. 432; Holzheimer v. Lit Bros. 262 Pa. 150, 105 Atl. 73; Zondler v. Foster Mfg. & Supply Co. 277 Pa. 98, 120 Atl. 705; Sieber v. Russ Bros. Ice Cream Co. 276 Pa. 340, 120 Atl. 272; Moore v. Roddie, 103 Wash. 386, 174 Pac. 648; Yernarelli v. Sweikert, 123 Wash. 694, 213 Pac. 482; Huddy, Auto. 8th ed. § 796; 2 Blashfield, Cyc. of Auto. Law, chap. 69, § 46. Under the evidence the jury should not have been charged that there would have been no liability, as a matter of law, had the collision occurred while Melhouse was on the way to the depot. The accident did not occur at that time and the question is whether he was engaged in the course of his employment at the time it did occur. If Mel-house’s testimony is believed by the jury and if he was not using the truck at the time in order to expedite the business of his employer, his personal errand would not have been finished until he returned to the store. There would be no basis for applying the rule adhered to in Kohlman v. Hyland, 54 N. D. 710, 50 A.L.R. 1437, 210 N. W. 643, 56 N. D. 772, 219 N. W. 228, where the employee, after his personal detour, had proceeded a long distance in the direction required by the employer’s business, though on another route, before the collision occurred. Judgment reversed and new trial granted. *755 Burke, C'h. J., and Christianson, Nuessle, and Bore, JJ., concur.