Bauer v. Graner

• Decision Date: 03 May 1978
• Docket Number: No. 9428,9428
• Citation: 266 N.W.2d 88
• Parties: Larry BAUER, Plaintiff, Appellee, and Cross-Appellant, Leo Joseph Bauer, Jr., and Marie Lillian Bauer, Plaintiffs, v. Ray GRANER and Evelyn Graner, Defendants, Appellants, and Cross-Appellees, Randy Graner and the County of Morton, Defendants. Civ.
• Court: North Dakota Supreme Court

Page 88

266 N.W.2d 88

Larry BAUER, Plaintiff, Appellee, and Cross-Appellant, Leo Joseph Bauer, Jr., and Marie Lillian Bauer, Plaintiffs, v. Ray GRANER and Evelyn Graner, Defendants, Appellants, and Cross-Appellees, Randy Graner and the County of Morton, Defendants.

Civ. No. 9428.

Supreme Court of North Dakota.

May 3, 1978.

Rehearing Denied May 12, 1978.

Wheeler, Wolf, Wefald & Peterson, Bismarck, for plaintiff, appellee and cross-appellant; argued by Albert A. Wolf, Bismarck.

C. J. Schauss, Mandan, for defendants, appellants and cross-appellees.

ERICKSTAD, Chief Justice.

This is an appeal by Ray and Evelyn Graner, defendants and appellants, from the judgment and the order denying the motion for a new trial of the Morton County District Court. Larry Bauer, plaintiff, appellee, and cross-appellant, also appeals from the judgment which was in favor of Bauer and against the Graners in the amount of $37,230 plus interest and costs.

The main issues before us are whether or not the trial court erred under the circumstances of this case in determining the comparative negligence of the parties and in determining that Evelyn Graner was liable for the negligence of her husband, Ray Graner.

This case involves a motorcycle accident which occurred on June 26, 1974, in which Bauer was seriously injured. As a result of the accident, Bauer suffered from retrograde amnesia and remembers nothing which occurred the evening of the accident. There were no eyewitnesses to the accident. Therefore, it is impossible to know for certain the exact facts surrounding the accident.

What is known is that Bauer left his farm home on his motorcycle about 9:00 p. m. on June 26, 1974, traveling in the direction of the place where the accident occurred. This was testified to by Bauer's sister and brother, Brenda and Darrel Bauer. They also testified that the sun was starting to set at that time but that it was still light. Darrel also testified that it would only take a few minutes to reach the place of the accident from their farm.

Wayne Smith testified that he was working in his field and saw Bauer drive by heading north on the county road at a point between the Bauer farm and the place where the accident occurred. He also testified that the sun was still up but that it was close to the horizon.

The next person to see Bauer was Glen Smith, who arrived at the scene of the accident at about 2:00 a. m., June 27. He found Bauer lying unconscious on the road to the north of a pile of gravel on the road, and the motorcycle lying in the road several feet away from Bauer.

Matt Erhardt, a highway patrolman, arrived at the scene of the accident about 3:00 a. m. He found a tire track in the gravel pile which he believed was left by Bauer's motorcycle. This mark, according to his testimony, was approximately in the center of the road. His opinion was that the motorcycle hit the gravel and went into the air and out of control. He said that Bauer's body ended up about 47 feet to the north of the gravel pile with the motorcycle skidding on for a further distance. Bauer and the motorcycle, according to Erhardt, came to rest about in the middle of the road, with the motorcycle slightly more to the east. Erhardt said that the physical evidence was consistent with an attempt to avoid the gravel pile. He also testified, though, that the physical evidence was consistent with an attempt to jump the motorcycle over the gravel pile.

There is no dispute in the evidence as to how the gravel got on the county road. Randy Graner, on June 20, 1974, was driving a truck loaded with gravel to be used at the Graner farm when the bolts broke on a back wheel of the truck. He stopped the truck on the county road and contacted his father, and together they repaired the wheel. In order to accomplish this, they dumped about one-half of the gravel from the truck onto the road. Ray Graner and his son both testified that after the wheel was fixed, they reloaded onto the truck and another pickup about one-half of the gravel on the road and threw some of the rest into the ditch. The remainder of the gravel they left on the county road and its west shoulder.

Ray Graner testified that he talked to two county employees after the truck broke down and before the gravel was dumped and asked them to place warning flags on the road. This was done by the county workers. Ray Graner also testified that on June 21, he talked to George Kary, another Morton County employee who operated a maintainer, and that he asked Kary to level or move the gravel from the county road and that Kary agreed to do so. Kary denies having this conversation or even being in the area where the alleged conversation took place. In any event, the gravel was left on the road from June 20 until the night of the accident, June 26.

The parties are in agreement that Bauer approached the gravel pile from the south. The parties also agree that there is a hill to the south of where the gravel was on the road, and a culvert or bridge between the hill and where the gravel pile was located. Bauer contends that this culvert or bridge was in a state of disrepair (the extent of the disrepair is in conflict) and speculates that this condition of the culvert or bridge may have caused him to focus his attention on the culvert or bridge and not on the road ahead.

The testimony concerning the distance from the top of the hill to the south to the gravel pile, and the bridge to the gravel pile, varied considerably. Generally the testimony of the witnesses was that the hill was from 1,000 to 1,500 feet from the gravel pile and that the bridge was from 50 to 1,500 feet from the gravel pile.

There was also a conflict in the testimony of the witnesses as to the area of the road covered by the gravel and its depth. Most of the witnesses testified that the gravel extended just over the center of the road, although at least one person testified that the pile extended over three-fourths of the road. All of the witnesses testified that there was room for a vehicle to pass around the west side of the pile and many vehicles had done so during the time the gravel was on the road. The testimony concerning the depth of the pile varied from 3 feet to 16 inches at its deepest point. Erhardt testified the depth of the gravel pile where he found the track to be 17 inches.

There were also differences in the testimony of the several witnesses as to how far to the south this gravel pile was visible. The testimony varied from 400 to 1,500 feet in the daylight, and estimates down to 150 feet at night. Erhardt testified that the gravel could not be recognized as a hazard until a person was about 200 feet away from it, even though a person could see the gravel from a greater distance.

There also appears to be some dispute over how well the gravel blended in with the road. Most of the witnesses testified that the road on which the accident occurred was a dirt road, although Erhardt testified that it was a gravel road. There was some testimony that the gravel was a lighter color than the road, while there was other testimony that the color of the gravel and the road were about the same.

Finally, there appears to be no dispute that the flags posted by the county workers and Randy and Ray Graner had fallen down before the accident occurred, and were down at the time Bauer was found unconscious at the scene of the accident.

This case was heard before the Morton County District Court sitting without a jury. The trial court determined that the negligence of Ray Graner and Bauer both contributed to the accident and apportioned the negligence in the following manner: 51% to Graner; 49% to Bauer. The trial court also determined that the negligence of Ray Graner was chargeable to Evelyn Graner. Pursuant to those determinations, the district court judgment was entered on May 16, 1977, in favor of Bauer and against Ray and Evelyn Graner. The total amount of damages was found to be $73,000, which, when reduced according to Section 9-10-07 N.D.C.C., resulted in damages in favor of Bauer in the amount of $37,230 plus interest and costs.

The first issue on this appeal is whether or not the trial court erred in apportioning the negligence in the following manner: Ray Graner, 51%; Larry Bauer, 49%.

We have often said in the past that issues of negligence, proximate cause, and contributory negligence ordinarily are questions of fact for the trier of fact unless the evidence is such that reasonable minds can draw but one conclusion, and the findings of fact by the trial court will not be set aside unless clearly erroneous. Miller v. Trinity Medical Center, 260 N.W.2d 4 (N.D.1977); McKechnie v. O'Neil, 252 N.W.2d 875 (N.D.1977); Kresel v. Giese, 231 N.W.2d 780 (N.D.1975). That statement applies equally as well to the question of comparative negligence which is applicable in this case, and we, therefore, will not set aside the trial court's finding of the apportionment of the negligence unless such a finding is clearly erroneous. See Miller v. Trinity Medical Center, supra at 7. See also Rule 52(a), N.D.R.Civ.P.

Bauer, in his cross appeal, contends that the trial court erred in failing to apply the presumption of due care on his behalf and in attributing 49% of the negligence to him. The presumption of due care on Bauer's behalf arises from the fact that he suffered retrograde amnesia as a result of the accident and because there were no eyewitnesses to the accident. The presumption of due care on the part of someone who suffers from retrograde amnesia was adopted in North Dakota in Thompson v. Nettum, 163 N.W.2d 91 (N.D.1968). In syllabus P 2 of that opinion, we said:

"In an action alleging negligence, it is presumed that an injured party was exercising ordinary care and diligence and obeying the law where the injured party has suffered retrograde amnesia from injuries sustained in the accident and there were no eyewitnesses." 163 N.W.2d at 93.

There is no...