Vannett v. Cole

Bronson, J. This is an action to recover damages for personal injuries. On November 15, 1915, about midday, the plaintiff, a woman of seventy-one years, was struck and knocked down senseless by the automobile of the defendant, E. IT. Cole, then being operated by his wife. At the time the plaintiff was walking south upon the sidewalk along the easterly side of Broadway avenue, between the Great Northern tracks and the Viking hotel in the city of Fargo; Mrs. Cole was driving the automobile westward along the street that intersects Broadway avenue and extends up and beyond the Great Northern depot. As the plaintiff proceeded upon the cross walk at the intersection of such street and avenue, she was hit by such automobile then running at a speed not to exceed 4 or 5 miles per hour, and which theretofore, 60 feet of such crossing, was not exceeding a speed of 10 miles per hour; there was a clear, unobstructed view from such cross walk to the east along such street. At the close of plaintiff’s case the trial court granted a motion of the defendants for a directed verdict based upon absence of proof of defendant’s negligence and upon the proof of plaintiff’s contributory negligence and, from the judgment entered thereupon, the plaintiff prosecutes this appeal. Plaintiff assigns as error the direction of such verdict, and other errors of law during the trial. The record is short; the evidence meager. There is no evidence of any actionable negligence in the operation of such automobile at the time, contrary to the provisions of the speed ordinance of the city of Fargo, or at an excessive rate of speed. The only serious question raised by this record is whether the defendant Mrs. Cole, after observing the position of the plaintiff on the [265] cross walk, owed a duty to her, in the exercise of ordinary care to avoid injury, to give warning by sounding the horn or ringing the bell, required by statute to be on such automobile; and whether the record discloses any issues of fact for submission to the jury, concerning the breach of such duty. The evidence concerning this matter is to the effect that Milligan, a police officer of Fargo, was standing in front of the Great Northern Hotel, which is directly opposite from the place of the accident; that this is a busy part of the city, much traveled; that he was looking right .at the car and saw the plaintiff; that he first saw Mrs. Oole, the driver of the car, about' 60 feet east of the crossing, not exceeding a speed of 10 miles per hour; that she slowed down as she approached the crossing, and when she was about SO feet therefrom the plaintiff started across; that the plaintiff saw the car and stepped back toward the rail'road tracks; that then the automobile was going about 4 or 5 miles per hour. That the driver apparently saw Mrs. Vannett and then started .ahead; that “Mrs. Vannett started across in front of the car, but when just about in front of it she stopped again, and the car hit her.” The plaintiff testified that she was walking very slowly on this cross walk and did not see or hear any auto, except that she saw one auto standing about 3 feet to her left. The police officer further testified that he did not hear any ringing of any bell or blowing of any horn. Another witness testified that she saw the plaintiff walking very slowly and just ready to cross when the automobile hit her, and that the automobile came from toward the depot toward Broadway, and that it was not going awfully fast. By statutory provision every automobile shall'be provided with a bell or horn. Comp. Laws 1913, § 2972. This statute further provides that such bell or horn shall be rung or blown by the driver when" operating outside of a city or village when approaching from behind a vehicle propelled by animals. Such provision, however, does not mean to imply that when an automobile is being operated within a city or village, upon the highways therein, that a horn or bell is a’useless appendage, and that no duty in any case devolves upon the operator to use the same. Forgy v. Rutledge, 167 Ky. 182, 189, 180 S. W. 90. “We can imagine no use to which a bell, horn, or other signal device attached to an automobile could be put, except to give suitable signals [266] of tbe approach of the machine where .such signals would be necessary for the safety of persons traveling upon the highway, and manifestly the necessity for their use on the streets of a city or town is greater than in the country. The necessity for their use is implied from the provision requiring motor vehicles to be supplied with them. This proposition is too plain for argument.” Ibid. In Gifford v. Jennings, 190 Mass. 54, 76 N. E. 233, the defendant came up from behind the plaintiff without blowing his horn. It was held that this made a proper case for the jury upon which they were warranted in finding that the defendant was negligent in not sounding his horn. It is plainly the duty, therefore, of every automobile owner to make use of the horn or bell'required by statute whenever under the circumstances, in the exercise of ordinary care, injury can be avoided to pedestrians, upon the streets or highways of the city by a timely warning given. The operator of an automobile. is not necessarily exempt from liability for injuries occasioned, in a public street of a city, by simply showing that, at the time, such automobile was not exceeding the limit of speed permitted by ordinance or law; there is still the duty imposed on such driver to anticipate that he may meet pedestrians on the piiblic highways, who have .a lawful right there to be, and for them he must keep a proper lookout, using his ordinary senses and instrumentalities then possessed, so as to avoid injuries to them. Hennessey v. Taylor, 189 Mass. 583, 3 L.R.A.(N.S.) 345, 76 N. E. 224, 4 Ann. Cas. 396, 19 Am. Neg. Rep. 285; Kathmeyer v. Mehl, — N. J. L. —, 60 Atl. 40, 17 Am. Neg. Cas. 688; Kessler v. Washburn, 157 Ill. App. 532; Ouellette v. Superior Motor Works, 157 Wis. 531, 52 L.R.A. (N.S.) 299, 147 N. W. 1014, 6 N. C. C. A. 357; Schnabel v. Kafer, 39 S. D. 70, 162 N. W. 935. The record presents a close question as to the existence of any evidence to_ raise an issue of fact concerning this duty of the automobile driver. However, the question of negligence becomes one of law, authorizing its withdrawal from the jury only when but one conclusion can be drawn from the undisputed facts; primarily and generally the question is one of fact for the jury. The law can only define the duty of individuals, under given circumstances. The existence of such cir267 eunistances is a question of fact for tbe jury. Pyke v. Jamestown, 15 N. D. 157, 168, 107 N. W. 359; Heckman v. Evenson, 7 N. D. 173, 182, 73 N. W. 427; Solberg v. Schlosser, 20 N. D. 307, 316, 30 L.R.A. (N.S.) 1111, 127 N. W. 91; McGregor v. Great Northern R. Co. 31 N. D. 471, 482, 154 N. W. 261, Ann. Cas. 1917E, 141. In the record the evidence is in dispute as to whether the plaintiff saw the automobile of the defendants. If the jury found that the plaintiff did not see such car, then there arose a specific issue of fact whether the driver of the car under the circumstances failed to exercise due care by not giving a warning through the bell or the horn required, which might have avoided the injury;.this was a question for the jury. The court is also of the opinion that the question of whether the plaintiff was guilty of contributory negligence upon the record was fairly one- of consideration for the jury. McGregor v. Great Northern R. Co. supra; Felton v. Midland Continental R. Co. 32 N. D. 223, 234, 155 N. W. 23; Hennessey v. Taylor, 189 Mass. 583, 3 L.R.A. (N.S.) 345, 76 N. E. 224, 4 Ann. Cas. 396, 19 Am. Neg. Rep. 285; Kathmeyer v. Mehl, — N. J. L. —, 60 Atl. 40, 17 Am. Neg. Cas. 688; Kessler v. Washburn, 157 Ill. App. 532; Spina v. New York Transp. Co. 96 N. Y. Supp. 270; Millsaps v. Brogdon, 97 Ark. 469, 32 L.R.A. (N.S.) 1177, 134 S. W. 632. The appellant also seeks to charge the defendant E. H. Cole with liability on the ground that he was the owner of the automobile at the time, and gave full consent to his wife to use it. There is evidence in the record that said E. H. Cole was the owner of such automobile and that his wife had permission to use the same whenever she so desired, •and that if she was using it on November 15, 1916, it was with his •consent. This presented sufficient issuable facts for submission to the jury upon which the defendant E. II. Cole might be charged with liability under the doctrine of respondeat superior. Daily v. Maxwell, 152 Mo. App, 415, 133 S. W. 351; Kayser v. Van Nest, 125 Minn. 277, 51 L.R.A.(N.S.) 970, 146 N. W. 1091; Ferris v. Sterling, 214 N. Y. 249, 108 N. E. 406, Ann. Cas. 1916D, 1161; Campbell v. Arnold, 219 Mass. 160, 106 N. E. 599; Guignon v. Campbell, 80 Wash. 543, 141 Pac. 1031; Birch v. Abercrombie, 74 Wash. 486, 50 L.R.A.(N.S.) 59, 133 Pac. 1020; Norris v. Kohler, 41 N. Y. 42, 1 Am. Neg. Cas. [268] 324; Schreiber v. Matlack, 90 Misc. 667, 154 N. Y. Supp. 109; McHarg v. Adt, 163 App. Div. 782, 149 N. Y. Supp. 244; Berry, Automobiles, 2d ed. §§ 673, 677, 678. See Armstrong v. Sellers, 182 Ala. 582, 62 So. 28; Ploetz v. Holt, 124 Minn. 169, 144 N. W. 745; McNeal v. McKain, 33 Okla. 449, 41 L.R.A.(N.S.) 775, 126 Pac. 742. See note in 41 L.R.A. (N.S.) 775. The appellant contends for the application of the doctrine of res ipsa loquitur upon'which to predicate negligence of the defendants, based upon the manner in which the appellant Avas injured and the force with which she was knocked down by such automobile. The record discloses no evidence upon which this doctrine may be applied, for upon the record there is no presumption of negligence on the part of the driver arising from the mere fact that the appellant was run down and injured on a public street. Millsaps v. Brodgon, 97 Ark. 469, 32 L.R.A.(N.S.) 1177, 134 S. W. 632. See note in 32 L.R.A.(N.S.) 1177. In view of the error of the trial court in directing verdict it is unnecessary to consider the other errors complained of. The judgment of the trial court is reversed and a new trial ordered. Guace, J. I concur in the result. ChkistiaNSON, Ch. J. I dissent. I believe the judgment should be affirmed.