Emery v. Midwest Motor Exp., 7237

• Decision Date: 26 August 1952
• Docket Number: No. 7237,7237
• Citation: 79 N.D. 27,54 N.W.2d 817
• Parties: EMERY v. MIDWEST MOTOR EXP., Inc. (two cases).
• Court: North Dakota Supreme Court

Page 817

54 N.W.2d 817

79 N.D. 27

EMERY v. MIDWEST MOTOR EXP., Inc. (two cases).

No. 7237.

Supreme Court of North Dakota.

Aug. 26, 1952.

Syllabus by the Court.

1. In an action to recover damages for negligence, the questions of negligence and contributory negligence are generally questions of fact for the jury; they become questions of law only when the evidence is such that reasonable minds cannot reasonably draw different conclusions either as to the facts or as to the deductions to be drawn therefrom.

2. The evidence in this case is considered, and, for reasons stated in the opinion, it is held that the questions of negligence and contributory negligence were for the jury and that it cannot be said as a matter of law that the plaintiff was guilty of contributory negligence.

3. A statement of a man who had been employed by the defendant to drive its truck and deliver the load of freight carried thereon at a certain destination that he did not see the other truck driven by the plaintiff, made at the sence of the accident within minutes after the collision between the truck he was driving and the truck driven by the plaintiff to a policeman who had come in response to a radio order and while the parties were there and the trucks that had collided were in the positions in which they were placed after the collision and while the driver of defendant's truck continued in charge of the truck he was driving and before the task entrusted to him by the plaintiff had been completed, and it was still his duty to complete the trip and deliver the truck with the load of freight thereon at the terminal in the city where the accident occurred, was admissible in evidence against the defendant.

4. Under the laws of North Dakota a verdict may be vacated on the ground of excessive damages appearing to have been given under the influence of passion or prejudice, but when a new trial is asked for on this ground and it appears that the passion and prejudice affected only the amount of damages allowed and did not influence the findings of the jury on other issues in the case, the trial court, on hearing the motion, has power to order a reduction of the verdict in lieu of a new trial, or to order that a new trial be had unless the party in whose favor the verdict was given remits the excess of damages. NDRC 1943, 28-1902, Subdivision 5.

5. Where a motion for a new trial is made on the ground of excessive damages appearing to have been given under the influence of passion or prejudice, a duty is placed upon the trial court to whom the motion is addressed to consider and weigh the evidence.

6. A motion for a new trial on the ground of excessive damages appearing to have been given under the influence of passion or prejudice is addressed to the sound judicial discretion of the trial court and the appellate court will not interfere with the trial court's determination unless a manifest abuse of such discretion is shown. In the instant case it is held for reasons stated in the opinion that the trial court did not abuse the discretion vested in him in ordering a new trial.

7. NDRC 1943, 31-0202, which provides that a party to any civil action or an officer of any corporation which is a party to the record of any action, at the instance of the adverse party may be examined upon the trial of the action as if under cross examination, and that the party calling for such examination shall not be concluded thereby but may rebut it by counter testimony, was not intended to authorize an examination on matters foreign to any question or issue that may properly be presented for determination on such trial.

8. In an action for damages caused by the alleged negligence of another, wherein only compensatory damages may be awarded, evidence as to the financial condition of the parties is inadmissible.

9. In an action for compensatory damages for personal injuries resulting from the negligent operation of a truck by the defendant, and where there is no basis for allowance of exemplary or punitive damages, it is error to permit, over the objection of the defendant, examination of an officer of the defendant company called for examination under NDRC 1943, 31-0202, as to the number of trucks owned and operated by the defendant and the number of branch offices maintained by it.

10. In an action wherein the plaintiff seeks to recover damages for personal injuries which it is alleged will render him unable to perform work which he formerly performed in the conduct of a business owned and operated by him, the opinion of the plaintiff as to the value of his services rendered to his business for a period of time prior to his injury is inadmissible.

J. E. Hendrickson, Fargo, G. L. Dosland, Moorhead, Minn., for plaintiff.

Strutz, Jansonius & Fleck, Bismarck, and Wattam, Vogel & Bright, Fargo, for defendant.

CHRISTIANSON, Judge.

This is an action to recover damages alleged to have resulted from a collision between a Ford pickup truck owned and driven by the plaintiff and a tractor and semi-trailer owned by the defendant and driven by its employee, Martin Henry. It is alleged in the complaint that the collision was caused by the negligence of said defendant's employee. It is further alleged in the complaint that as a result of the collision the plaintiff sustained personal injuries and that the Ford pickup truck driven by him was damaged all to the damage of the plaintiff in the sum of $103,457.87. In its answer the defendant admits that an accident occurred on September 10, 1948, within the City of Fargo in this state in which an automobile driven by the plaintiff collided with the truck owned and operated by the defendant. All allegations in the complaint except those specifically admitted are denied. The defendant by way of further answer alleges that if the plaintiff sustained the injuries and the damages as alleged in the complaint, such injuries and damages and the accident causing the same were the direct and proximate result of the negligence of the plaintiff and that plaintiff's negligence contributed to the happening of the accident. The case was tried to a jury upon the issues framed by the pleadings. At the close of plaintiff's case and again at the close of all the evidence and after both parties had rested, the defendant moved the court to direct the jury to return a verdict for the defendant and against the plaintiff on the grounds that the evidence conclusively shows that the accident and the resulting injuries to the plaintiff, if any, were proximately and directly caused by the negligence of the plaintiff and that the negligence of the plaintiff contributed to the happening of the accident. The motions were denied and the case submitted to the jury. The jury returned a verdict in favor of the plaintiff and against the defendant for $32,500. Judgment was entered pursuant to the verdict. Thereafter the defendant moved in the alternative for judgment notwithstanding the verdict or for a new trial. After due hearing the trial court made and filed a memorandum and order wherein he said:

'The court has reviewed the testimony taken at the trial together with the exhibits offered and received in evidence. Such review convinces this court that, even though the plaintiff's contentions were uncontroverted and the defendant has conceded liability for the collision and resulting damage, the amount awarded to plaintiff by the jury is far in excess of any damages for which said plaintiff offered competent proof at the trial. This court is of the opinion that an award of $3250.00 would be adequate compensation to plaintiff for the damages resulting from the accident.

'It is ordered, therefore, that defendant's motion for judgment notwithstanding the verdict be denied; that the judgment entered upon the verdict of the jury against the above named defendant for the sum of $32,500.00 and costs, be reduced to $3250.00 and costs; that in the event that plaintiff does not file a written consent to such reduction on or before October 20th, 1950, this court will enter its order vacating the judgment against said defendant, vacating and setting aside the verdict of the jury, and granting a new trial upon the motion of defendant therefor heretofore made.'

Shortly thereafter the trial court made and entered an order wherein it is said:

'It is Ordered: Defendant's motion for Judgment Notwithstanding The Verdict is denied.

'The Court specifically finds that the jury's verdict of $32,500.00 for the plaintiff was far in excess of any competent proof offered by the plaintiff, and that such verdict was influenced by the passion and prejudice of the jury. The Court further find that such passion and prejudice did not affect the other issues of this lawsuit. It is accordingly,

'Ordered: In the event the plaintiff does not before October 20, 1950 file with the clerk of this court his written consent reducing the judgment herein from $32,500.00 and costs to $3,250.00 and costs, the defendant shall have a new trial herein, and the judgment heretofore entered shall be vacated and the verdict set aside.'

The plaintiff refused to consent to a reduction of the amount of the judgment as provided in the orders of the court and on October 23, 1950, the court made an order referring to its former orders and providing further that:

'It is, Ordered:

'1. Defendant's motion for Judgment notwithstanding the Verdict is denied.

'2. The defendant is granted a new trial, and the judgment herein in favor of the plaintiff and against the defendant in the sum of $32,537.05, dated May 23, 1950, is vacated and the verdict in this lawsuit is set aside.'

The plaintiff appealed from both of these orders. The defendant also appealed from both orders. One of the specifications of error on the appeal of the defendant is predicated upon the proposition that the defendant was entitled to a directed verdict. The motion for a directed verdict was based upon the ground that 'the evidence...