Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1913-05-20
Supreme Court

In the Supreme Court, State 0
North Dakota, October Term, 1912. .
John Messer. Plaintiff and Respond
ent, VS.. Henry Bruening, Defendant
and Appellant.
Plaintiff, driving south with a sin
! gle horse and buggy, in the daytime,
met defendant driving an automobile,
( on a level prairie highway, unfenceC,
without entertainments. and with ploy'
| ed fields on either side. Upon meet.
ing defendant raj the machine to his
right side OF the road nea the pow
ed field to his east. The only subs;al
tial conf1ic in the testimony is as tC
| whether his lrr.O,2h was at & rea'
sonable speed, ana whether the liza
chine was stopped after its turi tc
the right. Plaintiff in the meantime
kept the road without attempting to
turn to his right, thus driving his
horse nearer 70 the machine. when
the horse became ~unmanageable turn.
ed toward the machine and crossed in
front Of it into the west field. Plain
tiff. in stopping the horse, pushed out
the front of the buggy box and receiv-
ca injuries for which he seeks to re-
cover damages. During defendants
approach 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 macnlne 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 rea-
sOnable distance from the automobile.
The complaint seeks tl), a recovery
for defendants negligence at common
law, on specific grounds alleged. and
~. for negligence and damages re.
sulting becaue of defendants alleged
failure to heed the alleged statutory
signal to stop given by plaintiffs 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 appeals.
1t Is Held:
% The court gave the following in
structions: III ordinary care or pru-
uClNC lSQultCu IlcIlN DluCllllS ~ wv
some particular thing which he failed
70 do uDon 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 some
thing they might infer to be negll.
gence other than the specific negli.
gent acts charged in plair lifts com.
plant.
amended by Chapter ~ of the SEES
sion Laws Of 1905. specifically require
that such signal shall be given by the
of al animal.propelled vehicle,
and the signal by an occupant is in.
sujcient to constituate the statutory
to be given by the driver. I'm
til such signal is given by the driver
liability under the statute for fail.
ing to stop attaches. But in the alb.
sence of a signal a failure to stop, or
failure to heed signals given by 9th
er occupants of the vehicle than the
may be matters for the jury
with all the facts of the case upon
questions of common law negligence
involved.
tSpllabus by the Court.
From a judgment of the district
court of Foster county, Coffey, j., de.
PENDANT appeals.
Reversed and new trial granted,
Fisk, j., dissenting. Opinion by Goss,
+. P. Kelly of Darlington. attorney
for plaintiff and respondent.
T. F. McCue of Darlington, attor-
ney for defendant and appellant.