Dehn v. Otter Tail Power Co.

• Decision Date: 24 February 1977
• Docket Number: No. 9275,9275
• Citation: 251 N.W.2d 404
• Parties: Bret O. DEHN, Plaintiff and Appellee, v. OTTER TAIL POWER COMPANY and Ervin Sahr, Defendants and Appellants. Civ.
• Court: North Dakota Supreme Court

Page 404

251 N.W.2d 404

Bret O. DEHN, Plaintiff and Appellee, v. OTTER TAIL POWER COMPANY and Ervin Sahr, Defendants and Appellants.

Civ. No. 9275.

Supreme Court of North Dakota.

Feb. 24, 1977.

Syllabus by the Court

1. Considering the evidence presented in this case, along with inferences and conclusions which may reasonably be deduced from such evidence, the jury could properly have found that the defendants were negligent and that their negligence was a proximate cause of plaintiff's injury; thus it was not error on the part of the trial court to deny a motion for judgment notwithstanding the verdict.

2. An order denying a motion for a new trial will not be overturned absent a showing of a manifest abuse of discretion.

3. Under the so-called "rescue doctrine", the test of whether a person is justified in risking life or serious injury in attempting to rescue another from danger is whether a reasonably prudent person, under similar circumstances, would have acted as he did.

4. Where expert testified that there is a high probability that electrical transmission wire moved, based on evidence of instability of supporting pole, any error in previously permitting expert to state that the wires could have moved was cured.

5. Where expert's opinion that electrical transmission wire moved is based on presumed instability of the wire, which presumption is in turn based upon evidence that the wire was stressed by a broken pole and that the wire has varied in height over several hours, it cannot be said that the opinion is without proper foundation.

6. It was not error to omit the words "except so far as the injured person willfully or by lack of ordinary care, has brought the injury upon himself", from jury instruction taken from North Dakota Jury Instruction No. 100, as the legislature has deemed that language inconsistent with comparative negligence.

7. Refusal to give requested jury instruction was not error where clear, concise instruction is given which embodies the substance of the requested instruction.

8. Where counsel for plaintiff asked jurors upon voir dire examination whether they would have any hesitancy in awarding damages commensurate with the injury they found, even though large in dollars, where specific dollar amount was not mentioned, it was well within the trial court's discretion to allow this examination.

9. It was not error to permit testimony as to how much land plaintiff's family owned, when testimony regarded the work plaintiff was engaged in and there was no indication as to the value of the land.

10. Where there is no specific assertion of passion or prejudice on the part of the jury, beyond a bare assertion, abuse of discretion in refusal to grant a new trial on this ground is not found.

11. Where medical expert testified that, based on photographs of burn victim, there was a very strong probability that treatment was necessary, it will not be said that there was no foundation for the expert's 12. Where no instance of prejudice is asserted, there is no error found in trial court's giving instructions which are a paraphrase of the pleadings of the case.

testimony where two other qualified medical experts who both physically examined the victim and viewed the photographs gave substantially similar testimony.

13. Where parties agreed to verdict form asking jury to determine "general" and "special" damages and did not consider it necessary to define those terms in instructions, and where the evidence supported no more than $30,000 "special" damages but the jury returned a verdict for $30,000 "general" damages and $350,000 "special damages", and where the defendant objected to resubmitting the matter for correction, and where the only reasonable construction of the verdict was that the jury found $30,000 "special" damages and $350,000 "general" damages, it was not error to deny a motion to amend the judgment, which judgment was based on the verdict so construed.

Tenneson, Serkland, Lundberg & Erickson, Fargo, for plaintiff and appellee; argued by Chester J. Serkland, Fargo. Also present: Ronald H. McLean, Fargo.

Nilles, Hansen, Selbo, Magill & Davies, Fargo, for defendants and appellants; argued by Frank J. Magill, Fargo.

ERICKSTAD, Chief Justice.

We have been presented with seventeen issues for our review in this appeal by defendants Otter Tail Power Company and Ervin Sahr, who were found liable, on a comparative negligence allocation, for 75% of $380,000 damages the plaintiff, Bret Dehn, was found to have suffered from burns over large parts of his body and amputation of his right leg below the knee, stemming from contact with an electrical transmission line owned and operated by Otter Tail. The alleged errors are predicated upon the trial court's denial of Defendants' Motions for Judgment Notwithstanding the Verdict, for a New Trial, and to Amend the Judgment. Many of the issues relate to the sufficiency of the facts to sustain a jury verdict and to various instructions given and not given to the jury.

FACTS

On July 8, 1974, Harlan Wilkie, the Chief of Police at Lisbon, North Dakota, was called to the scene of an accident approximately nine miles south of Lisbon on North Dakota Highway 32. This a paved roadway extending in a southerly direction from Lisbon. Arriving at the scene at about 4:30 a. m., he found an automobile on its top near a power pole in the west ditch, the front of the car facing west. The driver of the automobile, Larry Pederson, was standing along the shoulder of the road. Wilkie testified that the power pole was broken less than halfway up, but was not detached at that time, and the wires were 25-30 feet from the ground.

Maynard Vannett, a North Dakota highway patrolman stationed in Lisbon, was notified of the accident at about 4:30 a. m. on July 8. After some preliminary investigation, he arrived at the accident scene at approximately 6:00 a. m. He said that the broken pole was about 65 feet from the roadway, on the other side of a steep ditch, and that the broken pole was separated at that time with the top portion hanging from the wires. He stated that the easternmost wire was then about ten feet in the air, and approximately 25 feet west of the passenger door of the overturned automobile. He testified that he drove to Lisbon and, at approximately 7:00 a. m., asked Ransom County Sheriff Raymond Olson to inform the power company regarding the broken pole.

A deposition of Sheriff Olson was read into evidence, in which Olson stated that he notified Ervin Sahr, a lineman for Otter Tail Power Company, at about 7:00 on the morning of the accident, that "(T)here was a report of a post or pole being broken nine miles south of Lisbon, that two wires was hold'n it up, and that a car had hit it."

There was testimony by Dennis Whitman, who was a Deputy Sheriff in Ransom Holger Fog, who lived a few miles from the accident scene, testified that on his way to work about 8:00 that morning, he spotted the overturned car and broken pole. He stated that he stopped his car and went to see if anyone was in the overturned car, and upon finding no one there drove to Lisbon. It was his testimony that the easternmost wire was then six to six and one-half feet above the ground and directly above the front wheels of the automobile. He arrived at his office in Lisbon about 8:25 a. m. and made several phone calls, attempting to locate an Otter Tail employee, before he was able to contact a woman he believed to be the wife of an employee of Otter Tail. He told her to notify the company's office that "(T)here was a car that had broken a pole of Otter Tail's."

County at the time of the accident, that, pursuant to a note left him by Patrolman Vannett, between 8:00 and 8:30 that morning he notified Ervin Sahr of the pole being down and that Sahr told him he already knew about it.

Bret Dehn, the plaintiff and appellee in this case, testified that he and Ronald Lebus were driving from Dehn's home in Enderlin to a construction project on which they were working, on the morning that the power pole had been broken. Dehn, who was nineteen years old at the time, was employed in his father's construction business. While traveling south on Highway 32, they saw the accident at about 9:20 a. m. Dehn stated that when they stopped, he saw a parked pickup and an individual, later identified as Donald Anderson, the step-father of Larry Pederson (the driver of the overturned car), walking from the shoulder of the road into the ditch. Lebus testified that he saw Anderson step out of the pickup and run across the road. It was Anderson's testimony that he had been standing beside the car for about five minutes before Lebus and Dehn arrived. Both Lebus and Dehn said that they stopped in order to see if there was anyone in the overturned car who needed help. Apparently Anderson and Lebus were first on the north side of the car while Dehn was south of it. Anderson and Lebus then walked to the south side of the vehicle. While they were engaged in conversation, they heard a buzz and saw a flash, and then Dehn fell over the car. The men dragged Dehn away from the car a few feet, at which time a second explosion occurred. Neither Anderson nor Lebus claimed to have seen Dehn actually contact the wire, though Lebus said he saw him bend down and look into the car shortly before the electric flash.

Anderson testified that he told the others to stay away from the wire as it was "hot", but both Dehn and Lebus stated that Anderson did not speak to Dehn. Anderson also testified that, after the electric flash, Lebus told him "I don't know why in the world he walked into that line after you warned him it was still hot". Anderson said Lebus also made other statements to that effect. Lebus said he had no recollection of making such statements, and testified that he did not hear Anderson warn Dehn about the wires.

Bret Dehn testified that he is about six feet tall. He said that when he stopped at the...