Demaray v. Ridl

Decision Date23 December 1976
Docket NumberNo. 9244,9244
Citation249 N.W.2d 219
PartiesRichard DEMARAY by his Guardian Winona Demaray and Winona Demaray, Individually and as Guardian for Kelly Demaray, et al., Plaintiffs-Appellees, v. Doug RIDL, Defendant-Appellant, and Ed Sadowsky, Defendant. Civ.
CourtNorth Dakota Supreme Court

Syllabus by the Court

1. A motion for a new trial, pursuant to Rule 59, N.D.R.Civ.P., is addressed to the sound discretion of the trial court.

2. When it appears to the trial court that the verdict is against the weight of the evidence, it is the duty of that court to set aside the verdict and to grant a new trial.

3. The granting of a motion for a new trial upon the ground of the insufficiency of the evidence will not be disturbed on appeal unless a manifest abuse of discretion appears.

4. In an appeal from an order granting a new trial on the ground of insufficiency of the evidence to support the verdict, the appellant has the burden of showing that the trial court erred and that the granting of the new trial was a manifest abuse of the trial court's discretion.

5. A stronger showing is required to reverse an order granting a new trial than to reverse an order denying one.

6. Where a jury attributes to a party fifty per cent of the negligence responsible for causing an accident when the evidence is wholly insufficient to justify a finding that that party was negligent to the extent of fifty per cent, a trial court may properly exercise its discretion by granting a new trial, pursuant to Rule 59(b)(6), N.D.R.Civ.P.

7. Because of the instinct of self-preservation, there exists a rebuttable presumption that one who has suffered death by accident was at the time of the injury exercising due care for his own safety.

8. A bailiff's failure to comply with the provisions of § 28--14--19, N.D.C.C., requiring the bailiff to bring the jury into court for answers to their questions, and a bailiff's violation of § 28--14--18, N.D.C.C., by answering questions about the verdict formsServe as a competent basis upon which a trial court may grant a new trial, pursuant to Rule 59(b)(1), N.D.R.Civ.P.

9. The presence of a law book in a jury room, opened to a case dealing with the same subject as the case under consideration, is grounds for the exercise of a trial court's discretion in granting a new trial, pursuant to Rule 59(b) (1), N.D.R.Civ.P., without requiring a showing that the law book was used by the jury.

10. A trial court properly exercised its discretion in granting a new trial as against a particular named defendant where grounds for a new trial existed pursuant to Rule 59(b), N.D.R.Civ.P., and where an act or a failure to act by such defendant might be found by a jury to have been a proximate cause of a plaintiff's injuries.

L. E. Greenwood, Dickinson, for Doug Ridl, defendant and appellant; argued by M. L. Greenwood, Dickinson.

Lundberg, Nodland & Schulz, Bismarck, for plaintiffs and appellees; argued by Irvin B. Nodland, Bismarck.

Pearce, Anderson, Pearce, Thames & Pearce, Bismarck, for Edward Sadowsky, defendant.

PAULSON, Judge.

This appeal is from an order dated April 5, 1976, of the District Court of Stark County, granting plaintiffs' (hereinafter the Demarays) motion for a new trial as against the defendants Henry S. Dvorak and Doug Ridl. The Demarays also made an alternative motion for judgment notwithstanding the verdict but the motion was denied on the basis that the Demarays had failed to make a motion for a directed verdict. Only Ridl has appealed from the order of the district court granting a new trial.

The Demarays commenced a wrongfuldeath action, pursuant to Chapter 32--21, N.D.C.C., against the defendants Henry S. Dvorak, Ed Sadowsky, and Doug Ridl, following an automobile accident which occurred in the forenoon of December 19, 1974, in which Flora Demaray, wife of Richard Demaray, received severe injuries which resulted in her death shortly thereafter as a direct result of said accident. Flora Demaray was driving an automobile on Highway 22, proceeding in a northerly direction from Dickinson. She was accompanied by her sister, Lois Linder, who was a passenger in the front seat of the Demaray automobile. Some distance ahead of the Demaray vehicle was a semitruck, the owner or the driver of which has never been ascertained. Three vehicles were proceeding in a southerly direction on Highway 22 at approximately the same time, at a point about five miles north of Dickinson.

The first of the three southbound vehicles was driven by the defendant Ridl, the appellant herein. He intended to make a lefthand turn across the northbound lane of the highway, into a private road leading to his father's farm, which was located just east of Highway 22 and approximately five miles north of Dickinson. Ridl stopped his vehicle in the southbound lane to wait for the northbound traffic to clear, in order that he could make a left-hand turn. Ridl testified that he had turned on the left turn signals of his vehicle prior to stopping, but testimony by Sadowsky indicated that the rear lights of Ridl's vehicle were covered with snow and were not visible to drivers approaching Ridl's vehicle from the rear. Specifically, Ridl was waiting for the northbound semitruck to pass. About fifteen hundred feet immediately north of the Ridl vehicle there was a slight hill over which Ridl had just driven, prior to bringing his vehicle to a stop in anticipation of making a left-hand turn.

Behind Ridl's stopped vehicle was the southbound vehicle driven by Sadowsky, who was also a defendant in the trial of this action. At some point within the fifteen hundred feet after cresting the top of the hill, Sadowsky was able to see the Ridl vehicle, recognize that it was either stopped or moving slowly, and bring his own vehicle to a stop ten to fifteen feet behind the stopped Ridl vehicle.

The third southbound vehicle, a truck, driven by Dvorak, also crested the same hill, but he was unable to bring his truck to a stop before crashing into the rear of the stopped Sadowsky vehicle. Dvorak testified that he did not have sufficient time after he saw the Sadowsky vehicle's brake lights come on to stop his truck. Because of the presence in the northbound lane of both the semitruck and the Demaray vehicle, it was not possible for the southbound Dvorak to use the northbound lane to avoid hitting the stopped Sadowsky and Ridl vehicles.

Dvorak, in his attempt to avoid the rearend collision with Sadowsky's vehicle, braked his truck, causing it to skid. Dvorak's vehicle at the time of impact with the rear end of the Sadowsky vehicle, had skidded over into the northbound lane. The northbound semitruck had just safely passed and proceeded beyond the three vehicles in the southbound lane, but the northbound Demaray vehicle, traveling immediately behind the semitruck, crashed into that portion of the Dvorak truck which had skidded six to ten feet into the northbound lane.

The semitruck continued traveling northward without stopping, the driver apparently unaware of the accident which then occurred. and the fatal injuries sustained by Flora and the fatal injuries sustained b yFlora Demaray were caused by the negligence, jointly and severally, of each of the three defendants--Dvorak, Sadowsky, and Ridl. The case was tried to a jury which returned a special verdict wherein it awarded damages to the Demarays in the amount of $37,983.00. In specifying the amount of negligence attributable to each of the parties, however, the jury assigned fifty per cent negligence to the defendant, Dvorak, and fifty per cent negligence to Flora Demaray, the decedent; and found that defendants Sadowsky and Ridl were not negligent. Accordingly, under the North Dakota comparative negligence statute (§ 9--10--07, N.D.C.C.), the Demarays did not recover any damages.

The Demarays made a motion for judgment notwithstanding the verdict or in the alternative for a new trial. The trial court in its memorandum decision granted the motion for a new trial as against the defendants Dvorak and Ridl, and vacated the verdicts and judgments in their favor. The grounds for such order were:

(1) that the evidence is wholly insufficient and in fact nonexistent to justify a finding that the decedent was negligent to the extent of fifty per cent;

(2) that the bailiff had improper communication with the jurors; and

(3) that the leaving of Volume 74 of the North Western Reporter Second in the jury room, which volume was opened to the case of Geier v. Tjaden, 74 N.W.2d 361 (N.D.1955), a wrongful-death action, constituted prejudicial error.

Ridl contends that the aforesaid grounds constitute an insufficient basis for the trial court to order a new trial as against Ridl. We disagree.

First, we note that orders of the trial court granting or denying a new trial rest largely in the discretion of the trial court. Smith v. Michael Kurtz Construction Company, 232 N.W.2d 35, 37 (N.D.1975); Wrangham v. Tebelius, 231 N.W.2d 753, 756 (N.D.1975), and cases cited. Further, we note that this court will more readily affirm a granting of a new trial than a denial of one, since such order granting a new trial does not make final determination of the case. Wrangham v. Tebelius, supra 231 N.W.2d at 756; Stein v. Ohlhauser, 211 N.W.2d 737, 742 (N.D.1973); Nokota Feeds, Inc. v. State Bank of Lakota, 210 N.W.2d 182, 187 (N.D.1973); and the development of the law stated in the dissent in Muhlhauser v. Archie Campbell Construction Co., 160 N.W.2d 524, 531 (N.D.1968).

In Wrangham v. Tebelius, supra 231 N.W.2d at 754, in paragraphs 1, 2, 3, and 4 of the syllabus, this court stated:

'1. When it appears to the trial court that the verdict is against the weight of the evidence, it is the duty of that court to set aside the verdict and to grant a new trial.

'2. The granting of a motion for a new trial upon the ground of the insufficiency of the evidence will not be disturbed on appeal unless a manifest abuse of...

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    ...any additional information"--were beyond the scope of his administrative function and therefore in error. See, e.g., Demaray v. Ridl, 249 N.W.2d 219 (N.D.1976). Such comments unnecessarily dampen proper jury communication with the judge, as can be seen by the foreman's immediate According t......
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