Dahl v. North Am. Creameries

• Decision Date: 16 December 1953
• Docket Number: Nos. 7383-84,s. 7383-84
• Citation: 61 N.W.2d 916
• Parties: DAHL v. NORTH AMERICAN CREAMERIES, Inc. et al.
• Court: North Dakota Supreme Court

Page 916

61 N.W.2d 916

DAHL v. NORTH AMERICAN CREAMERIES, Inc. et al.

Nos. 7383-84.

Supreme Court of North Dakota.

Dec. 16, 1953.

Syllabus by the Court.

1. The motion for judgment notwithstanding the verdict is in effect a renewal of the motion for a directed verdict made at the close of the evidence.

2. A motion for judgment notwithstanding the verdict may be granted only if at the time of the motion for directed verdict the party making such a motion was entitled to a judgment as a matter of law.

3. When the evidence is sufficient to make any material issue an issue of fact for the jury the motions for a directed verdict and for judgment notwithstanding the verdict should be denied.

4. With all orders on motions for a new trial the court is required to file a written memorandum stating the different grounds on which his ruling is based. If the insufficiency of the evidence is not stated as a ground for granting a new trial it will be presumed on appeal that a new trial has not been granted on that ground. Sec. 28-1906, NDRC 1943.

5. In actions for wrongful death under Sec. 32-2102, NDRC 1943 the jury shall give such damages as it finds proportionate to the injuries resulting from the death to the persons entitled to recover.

6. In determining the amount of damages for wrongful death of a parent, the jury has a right to consider the value of the nurture and instruction, moral and physical, the advice, training and protection which a parent is presumed to give to his child. The presumption is that such services are of pecuniary value to the child.

7. The verdict will not be disturbed on the grounds that the amount thereof is excessive unless the amount of damages is obviously so disproportionate to the injury proved as to justify the conclusion that the verdict is not the result of the cool, dispassionate judgment of the jury.

8. The evidence is examined and it is held that the verdicts rendered in the two cases are not so large as to show on the face of them that they are the result of passion and prejudice.

Fred J. Graham and J. B. Graham, Ellendale, and H. I. King, Jr., Aberdeen, S. D., for plaintiff-appellant.

T. L. Brouillard, Ellendale, and Ray F. Williamson, Aberdeen, S. D., for defendants-appellants.

GRIMSON, Judge.

On March 25, 1952, a collision occurred between a car driven by Maynard Dahl and a truck of the defendant, the North American Creameries, Inc., driven by the defendant, James McPhail. In that collision both the father and mother of the plaintiff received fatal injuries. They died within two days. Plaintiff was their only child. Two actions were brought by the plaintiff against the same defendants for damages, one for loss of plaintiff's mother and the other for the loss of plaintiff's father. The titles of both actions are indentical. In both actions plaintiff alleges the collision was caused by the negligence of the defendant, James McPhail. Defendants deny that and allege the collision was caused by the negligence of Maynard Dahl. The cases were tried separately to two different juries. Substantially the same evidence was offered in both cases. The same procedure was had; the same motions and the same rulings were made in each case. The district court decided both cases in one memorandum opinion. The same issues are involved on the appeals in both cases. The cases were argued together in this court. It is most expedient, therefore, to consider both cases in one opinion, treating separately only the facts and damages pertinent to each case.

At the close of the testimony in each case the defendants made a motion for a directed verdict in their favor on the ground of the insufficiency of the evidence which motions were denied. The jury in the case for damages on account of the mother's death rendered a verdict on Oct. 13, 1952, in the sum of $7500 in favor of the plaintiff and the jury in the case of the damages for the father's death rendered a verdict, on Oct. 15, 1952, for $10,000. Immediately upon the announcement of the verdict in each case the defendants made an oral motion for judgment notwithstanding the verdict upon the same grounds as had been alleged in the motions for directed verdict, or in the alternative, for a new trial on the grounds that the verdicts were patently excessive and rendered under the influence of passion and prejudice. In both cases the attorneys expressed a desire to be heard on those motions. About a month later a written notice of motion and a written motion to set aside the verdict and for a new trial together with specifications of error in each case were served upon plaintiff's attorneys. A hearing on all these motions was had on Dec. 4, 1952. On Jan. 23, 1953, the court filed his memorandum decision covering both cases, granting a new trial in each case on the ground 'that the verdicts are so excessive that the court can reach but one conclusion and that is that the verdicts were rendered under the influence of passion and prejudice.' A separate order granting the motion for a new trial in each case was signed by the court on Jan. 29, 1953. On Feb. 27, 1953, an amended order in each case was signed by the court denying the motions made for judgment notwithstanding the verdict and again granting a new trial in each case. The defendants appeal from the orders of Feb. 27th., insofar as they denied the motions for judgment notwithstanding the verdict. Plaintiff appeals from the orders of Jan. 29th granting new trials and also from the amended orders of Feb. 27th insofar as they purported to grant new trials.

The evidence shows that in the afternoon of March 25, 1952, Mr. and Mrs. Maynard Dahl and their ten year old daughter, Mancy Louise, of Ellendale, North Dakota, were returning home from a trip to Britton and Aberdeen, South Dakota, on U. S. Highway No. 281. That was a quite level highway, black top, 22 1/2 feet wide. A heavy fall of snow had formed drifts across the highway. To keep the highway open for travel cuts had been made through those drifts with a snow plow. Such cuts varied somewhat in width and the snow banks along the cuts were in places from four to seven feet high. In one of those cuts on the highway, which was some 400 feet or more in length, a collision occurred between the 1941 Ford driven by Maynard Dahl, and an International K.B.-11 tractor trailer combination owned and operated by the defendant, North American Creameries Company, Inc. and driven by Defendant, James McPhail. That combination was 44 1/2 feet long, 8 feet wide weighing empty, 25,000 lbs., and at the time was carrying an 11,000 pound load. It had dual wheels on the rear of the tractor and tandem dual wheels on the rear of the trailer. The Ford was 6 feet wide.

The Dahl car coming from the south entered the cut first and was almost through it before the collision occurred. The defendant's truck came from the north. The driver, McPhail, had driven through other cuts prior to reaching this one and had had to stop in one place to let a car that was in a cut get through before he entered it. He testified that he saw the Dahl car when it was at least a half mile away from him. He saw it enter the cut and almost reach the north end before he entered the cut. He did not, however, wait to let the Dahl car get through. Instead he proceeded into the cut at the admitted speed of 35 to 40 miles per hour to where the collision occurred about 50 feet from the north end. He made no effort to stop or put on the brakes. The sun had been shining that day and there was some slush and snow in the bottom of the cuts causing the road there to be somewhat slippery. McPhail claims to have been driving on the right hand side of the road, and that the front end of the Dahl car had swerved over across the center line into his side of the driveway just before the collision occurred. Nancy Louise was sitting on the left front seat of the Dahl car looking at the snow banks. She denied that her father's car had swerved and testified that her father was driving straight ahead on his side of the highway at a speed of 20 to 25 miles per hour. McPhail claims he was driving 35 to 40 miles per hour; that he turned into the snow bank on the right side to try to avoid the collision; that his trailer then began to jacknife; that he put on the power to get out of the snow to straighten it; that he then applied his brakes and stopped about 350 feet from the point of the collision. The momentum of the Dahl car carried in 50 feet north after the collision where it stopped facing west with its front wheels on the center of the road. The pictures taken of the Dahl car after the accident show that the left side of the Dahl car was caved in. The left front fender of the truck was crushed, left rear tire and the left driving wheel were damaged and there was 'quite a dent' made in the left, front corner of the trailer. The plaintiff testified that at the place of collision the snow bank on the east was 6 or 7 feet high. The defendant, McPhail, testified that the snow bank on the west was 3 1/2 to 4 feet high. The evidence is in conflict as to the distance between the banks. Three witnesses for the plaintiff testified that the width, according to their estimate was 15 to 18 feet. Shortly after the collision the highway patrolman, a witness for the defendants, measured the width with a tapeline, claiming the distance between the banks was 21 feet 'on the tape.' The patrolman had McPhail, the interested driver, hold one end of the tape. Whether that was the distance between the banks as they were after McPhail had driven his truck into the snow bank and naturally widened the space between the banks is not shown.

The decision on a motion for judgment notwithstanding the verdict is but deferred action on the motion for a directed verdict made at the close of the evidence. The decision is made on the evidence as it stood at that time. On such motions the evidence is considered in the light most...