Barkman v. Montague ( 1941 )

Review of this record brings the conviction that the circuit judge was right in entering judgment non obstante veredicto and that the judgment should be affirmed. On the motion for judgment non obstante veredicto, the circuit judge carefully reconsidered appellee's motion for a directed verdict on the ground that as a matter of law plaintiff's driver was guilty of contributory negligence which is attributable to plaintiff. In so doing the circuit judge was mindful that the testimony on this issue must be construed most favorably to appellant.

On this issue it is sufficient to note briefly the following facts. The automobile in which plaintiff was riding was travelling on a paved highway in an easterly direction. It was preceded by two other automobiles, each of which had just recently passed plaintiff's car. As the three cars approached an intersecting highway on which the driver of the leading automobile apparently desired to turn to his left, he observed two automobiles coming from the east, defendant Montague's car followed by another. The leading eastbound car stopped rather suddenly. The next following car also came to a stop behind the leading car. But plaintiff's car, clearly because it was being driven too close to the car ahead of it or at an excessive rate of speed, was first swerved by its driver to the right, obviously to avoid the danger of hitting the immediately preceding car; and then the driver of plaintiff's car, fearing collision with a tree at the right of the pavement, suddenly turned his car to his left, crossed over the westbound portion of the pavement, over the 3- or 4-foot shoulder of the road, and finally brought the car to a stop with its front end in the ditch and against the bank on the northerly side of the ditch. Just at this time defendant Montague was approaching from the east in his automobile, driving at a comparatively high rate of speed. Being confronted by the emergency caused by plaintiff's car unexpectedly crossing the westbound portion of the pavement, Montague swerved his car to his right and, under plaintiff's theory, Montague drove to the north and to some extent off the pavement, and collided with plaintiff's car. The driver of plaintiff's car as a witness for plaintiff testified:

"Q. How long did you stay down there [in the ditch] before he struck you?

"A. Cannot judge time that way.

"Q. About like that, wasn't it, a snap of the fingers?

"A. Very close."

For the purpose of decision herein it may be conceded that Montague was negligent; but the conclusion is also inescapable that the driver of plaintiff's car was guilty of negligence in that while he was proceeding in an easterly direction he was not driving his automobile in such a manner and under such control as was requisite under the statute for the safety of those proceeding immediately ahead of him as well as of the safety of the occupants of his own car, or at such a rate that he could stop in the safe clear distance ahead. It was that negligence which put the car in which plaintiff was riding in the position it was when struck by defendant's car. The negligence of plaintiff's driver was a proximate cause of the accident; and as a matter of law it constituted contributory negligence imputable to plaintiff. This was one of the grounds on which the trial judge entered judgment non obstanteveredicto for defendant. That holding was correct.

I concur with Mr. Justice WIEST in what he has written concerning the sufficiency of plaintiff's declaration; but that alone is not controlling on this appeal. The judgment entered in the circuit court should be affirmed for the reason above indicated. Costs should be to appellee Montague.

BUSHNELL and BOYLES, JJ., concurred with NORTH, J.