Brandt v. Milbrath

Decision Date15 July 2002
Docket NumberNo. 20010294.,20010294.
Citation2002 ND 117,647 N.W.2d 674
PartiesEldora Hagen BRANDT, Plaintiff and Appellant, v. Aldon James MILBRATH, Defendant and Appellee.
CourtNorth Dakota Supreme Court

David S. Maring (argued), Maring Williams Law Office, Bismarck, and Matthew A. Biegert (on brief), Doar, Drill & Skow, S.C., New Richmond, WI, for plaintiff and appellant.

Collin P. Dobrovolny, McGee, Hankla, Backes & Dobrovolny, Wells Fargo Bank Center, Minot, for defendant and appellee.

SANDSTROM, Justice.

[¶ 1] Eldora Brandt appeals from a Northeast Judicial District Court's judgment and order denying her motion for a new trial on the grounds that the district court abused its discretion in excluding the testimony of one of Brandt's witnesses and that the jury's verdict was not supported by sufficient evidence. We affirm, concluding the district court did not abuse its discretion in refusing to allow one of Brandt's witnesses to testify and there was sufficient evidence to support the jury's verdict.

I

[¶ 2] Eldora Brandt and Aldon Milbrath were in a traffic accident. Brandt was driving a pickup at the time of the accident, and Milbrath was driving a tractor pulling a cultivator. The parties' vehicles collided when they met each other on a highway after dark. Brandt sued Milbrath, alleging his negligence caused the accident. Brandt presented a variety of reasons why Milbrath was negligent, including: (1) his cultivator lacked the statutorily required reflectors, (2) the cultivator was over the center line at the time of the collision, and (3) the lights on Milbrath's tractor were so bright they blinded oncoming traffic.

[¶ 3] Of the three alleged negligent acts, one was uncontested. Milbrath admitted his cultivator did not have the statutorily required amber reflectors.

[¶ 4] Testimony differed regarding the lights on Milbrath's tractor. Brandt and the law enforcement officers at the scene all testified the light from Milbrath's tractor was "bright." One officer used the word "blinding" to describe the tractor's lights in his written report. On cross-examination, Brandt admitted she knew the lights she saw might be from a tractor. Milbrath testified he was using the tractor's "road lights" at the time of the collision. One of Milbrath's expert witnesses testified the lights on the tractor appeared to be the factory-installed lights.

[¶ 5] A substantial portion of the testimony focused on whether either Brandt's or Milbrath's vehicle was over the center line at the time of the collision. Because law enforcement officers asked Milbrath to move his tractor and cultivator before any photographs or measurements were taken at the scene of the accident, the location of the vehicles at the time of the collision had to be reconstructed from measurements of tire tracks. All the measurements were taken by a law enforcement officer. At trial, Brandt and Milbrath presented contrary evidence as to what two of the measurements represented.

[¶ 6] One measurement indicated a tire track 10 inches into the gravel on the side of the paved road where Milbrath was driving. Brandt argued this track was left by the inside tire of the left-hand side of the cultivator, and the law enforcement officer who took the measurements, Deputy Simon, identified this track as being made by the "inside cultivator tire." Milbrath argued this track was left by the pickup driven by his wife, and his expert witness identified this tire track as the type left by a pickup tire. If the jury credited Brandt's explanation and found the tire track was from the inside tire of the left-hand side of the cultivator, the outermost part of the cultivator would have been over the center line and in Brandt's lane. [¶ 7] The second measurement in dispute was a mark 5 feet 10 inches into the ditch on the side of the road where Milbrath was driving. Milbrath argues this mark was the tire track of the outside tire on the right-hand side of the cultivator, and Deputy Simon testified this mark was from the outside tire of the right-hand side of the cultivator. Brandt argues this mark was not a tire track, and her expert witness testified this mark was bent grass or a shadow in a photo taken later. If the jury credited Milbrath's explanation and found the mark in the ditch was from the right-hand side of the cultivator, the cultivator would not have been over the center line.

[¶ 8] In addition to the conflicting measurements regarding the location of the cultivator, several witnesses testified as to its location. Milbrath, his wife, his two accident-reconstruction witnesses, and two law enforcement officers testified the cultivator was not over the center line. Brandt and her expert witness testified the cultivator was over the center line.

[¶ 9] Brandt also sought to enter the testimony of another witness. Milbrath objected, and the witness's testimony was taken outside the presence of the jury. The witness testified that on the night of the accident she met a tractor and cultivator on the same road where the accident occurred and she had to swerve to avoid hitting the tractor and cultivator because the cultivator was in her lane of traffic. She was unable to identify the type or color of the tractor and cultivator, and she was not able to identify the driver. She also did not remember seeing an escort pickup leading or following the tractor and cultivator she met. The district court did not allow her to testify before the jury because the court was not satisfied the tractor and cultivator she met that night were Milbrath's.

[¶ 10] The jury returned a verdict in favor of Milbrath, finding he was not negligent. Brandt moved for a new trial, arguing the district court erred in excluding the testimony of her witness and the jury did not have sufficient evidence to support its verdict. The district court denied Brandt's motion for a new trial and stated:

1. Testimony of [Brandt's witness]:

The lack of detail in [her] testimony makes it speculative that she in fact passed the Milbraths on Gardena Road. Furthermore, her testimony only would have addressed the issue of whether the tractor was moving at the time of the collision. The plaintiff's expert testified as to the cultivator's location relative to the center line of the road at the time of the collision. There was no testimony from any other source supporting the premise that the tractor was moving at the time of the collision.

2. Evidence supporting the verdict:

There was sufficient evidence supporting the verdict. The defendant's expert concluded that the cultivator did not cross the center line of the road. A violation of a statutory duty is evidence of negligence and not negligence per se under North Dakota law. Considering the evidence in favor of the defendant this court cannot say that the jury errored [sic] in finding no negligence on the part of the defendant.

Brandt appealed the district court's denial of her motion for a new trial.

[¶ 11] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27-05-06. This Court has jurisdiction under N.D. Const. art. VI, § 6, and N.D.C.C. § 28-27-01.

II

[¶ 12] Brandt argues the district court erred by not allowing the testimony of her witness into evidence. [¶ 13] "Relevant evidence means evidence that reasonably and actually tends to prove or disprove any fact that is of consequence to the determination of an action." Wolf v. Estate of Seright, 1997 ND 240, ¶ 14, 573 N.W.2d 161. "Relevant evidence is generally admissible." Williston Farm Equip., Inc. v. Steiger Tractor., Inc., 504 N.W.2d 545, 548 (N.D. 1993). "Relevant evidence `may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.'" Id. at 549 (quoting N.D.R.Ev. 403). "A trial court has wide discretion in deciding whether proffered evidence is relevant, and we will not reverse a court's decision to admit or exclude evidence on the ground of relevance unless the court abuses its discretion." Wolf, at ¶ 14. "A trial court abuses its discretion if it acts in an arbitrary, unreasonable, or unconscionable manner." Id. This deferential standard is applied "to provide trial courts with greater control in the admissibility of evidence." Schaefer v. Souris River Telecomms. Coop., 2000 ND 187, ¶ 10, 618 N.W.2d 175.

[¶ 14] Brandt relies, in part, on Wolf v. Estate of Seright to support her proposition that her witness's testimony should have been admitted. See 1997 ND 240, 573 N.W.2d 161. In Wolf, a witness's observations of Wolf's driving shortly before a traffic accident were admitted. Id. at ¶ 13. Wolf and Seright were in a traffic accident in which Wolf hit the rear end of Seright's car. Id. at ¶ 2. Seright died as a result of the accident, and Wolf was seriously injured. Id. Wolf sued Seright's estate, claiming her negligence caused the accident. Id. At the trial, a witness was allowed to testify that he observed a "Coca-Cola pickup make a `sudden swerve or a correction' about five miles before the accident." Id. at ¶ 13. Wolf was driving a Coca-Cola pickup. Id. at ¶ 2. The jury found in favor of Seright. Id. at ¶ 1. On appeal, Wolf argued the testimony was not relevant. Id. at ¶ 13. We concluded:

Wolf's driving behavior before the accident was probative of the negligence and comparative negligence issues in this action. Moreover, Wolf opened the door for this evidence when counsel asked a previous witness about Wolf's driving behavior three miles before the accident. Under these circumstances, we conclude the trial court did not act arbitrarily, unreasonably, or unconscionably in admitting the [witness's] testimony that a Coca-Cola pickup made a "sudden swerve or a correction" about five miles before the accident.

Id. at ¶ 15.

[¶ 15] Wolf is distinguishable from...

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