The Fargo forum and daily republican. [volume] (Fargo, N.D.) 1894-1957, 1913-05-20
DECISION OF The
SUPREME COURT

L In the supreme court, state of North
Dakota, October term, 1912. John Mes
ser, plaintiff and respondent, VS.. Hen
ry Bruening, defendant and Appellant.
Plaintiff, driving south with a single
horse and buggy, in the daytime, met
defendant driving an automobile, on a
level prairie highway, unfenced, with
out entertainments, and with plowed
fields on either side. Upon meeting
defendant ran the machine to his right
side Of the road near the plowed field
to his east. The only substantial con-
f1ict in the testimony is as to whether
the machine was stopped after it's turn
to the right. Plaintiff in the mean
time kept the road without attempt
ing to turn to his right, thus driving
his horse nearer to the machine, when
the horse became unmanageable, turn
cd toward the machine n crossed IN
front of it into the east field. Plaintiff,
in stopping the horse, pushed out the
front Of the buggy box and received
injuries for which he seeks to recover
damages. During the defendants ap-
proaeh with the machine, plaintiffs
wife, occupying the seat with him,
raised her hands and screamed to de-
PENDANT to stop the automobile, plain
tiff meanwhile continuing to drive to-
ward it, but giving no signal himself
for the machine to stop. The condi-
ton of the road was such that plain
tiff could have turned off the beaten
track and to his right, and kept a
reasonable distance from the automo-
bile. The complaint seeks, % a re-
covery for defendants negligence at
common law, on specific grounds al
legged, and, (2) for negligence and dam
ages resulting because Of defendants
alleged failure to heed the alleged
statutory signal to stop given by plain
tiff's wife to the automobile driver.
The trial court instructed upon both
theories to the effect that the signal
of the wife was a signal by the driver.
From an $500 recovery defendant ap-
peaIs. 1t is held:
1. The court gave the following in
structions: IF ordinary care or pru-
dence required Henry Bruening to do
: some particular thing which he failed
to do upon this occasion. then he is
guilty of negligence" This was error
in that it permitted the jury to spec
ulate upon what might be negligence
and base their verdict upon something
they might infer to be negligence other
than the specific negligent acts .charg-
ed in plaintiffs complaint. 81
& 2. The statutes of this state, as
amended by chapter AZ Of the session
laws of 1909, specifically require that
such signal shall be given by the driv-
er Of an animal propelled vehicle, and
the signal by an occupant is insuffici-
ent to constitute the statutory signal
to. be given by the driver. Until SUCH
signal is given by the driver no liabil-
ity under the statute for failing to
stop attaches. But in the absence Of a
signal a failure to stop, or a failure to
heed signals given by other occupants
of the vehicle than the driver, may be
matters for the jury with all the facts
of the case upon questions Of common
law negligence involved.
Syllabus by the court.
From a judgment of tho district
court of Foster county, Coffey, j. de-
PENDENT appeals.
Reversed and new trial granted,
Fisk, j.. dissenting. Opinion by Goss,
J..
E. P. Kelly of Darlington. attorney
for plaintiff and respondent.
r. F. McCue of Darlington, attorney
for defendant and appellant.