Enget v. Neff, 7195

• Citation: 43 N.W.2d 644,77 N.D. 356
• Decision Date: 14 July 1950
• Docket Number: No. 7195,7195
• Parties: ENGET v. NEFF.
• Court: United States State Supreme Court of North Dakota

Page 644

43 N.W.2d 644

77 N.D. 356

ENGET v. NEFF.

No. 7195.

Supreme Court of North Dakota.

July 14, 1950.

Syllabus by the Court.

1. Where a motion for a new trial is made in the court below and an appeal is taken from the order denying the motion and from the judgment, alleged erroneous rulings of the trial court which constitute proper grounds for a new trial under Sec. 28-1902 R.C.N. 1943, must be presented on the motion; otherwise they will be deemed waived, whether included in the specifications of error upon appeal from the judgment or not.

2. A specification of insufficiency of the evidence to sustain the verdict or decision of the court shall point out wherein the evidence is insufficient. Sec. 28-1809 R.C.N.D. 1943.

3. A normal child between seven and eight years of age is not, as a matter of law, incapable of being guilty of contributory negligence.

4. In an action for personal injuries based upon negligence, where the answer of the defendant alleges contributory negligence he is entitled to prove a relevant municipal ordinance and its violation by the plaintiff as tending to show negligent conduct on the plaintiff's part although no reference to the ordinance was made in the answer.

5. A specification of error based on the erroneous admission of evidence must be directed to some specific ruling of the trial court and must challenge the correctness of that ruling.

Lanier and Lanier, Fargo, for plaintiff and appellant.

Day, Lundberg, Stokes, Vaaler and Gillig, Grand Forks, for defendant and respondent.

MORRIS, Judge.

This is an action for personal injuries received by the plaintiff in Grand Forks, North Dakota, on June 5, 1948, as a result of a collision between an automobile driven by the defendant and a bicycle ridden by the plaintiff. The case was tried to a jury and a verdict rendered in favor of the defendant. Judgment was entered thereon on order March 24, 1949. Thereafter the plaintiff moved for a new trial. The motion was denied on October 28, 1949. The plaintiff has appealed from the adverse judgment and from the order denying new trial.

At the close of the testimony plaintiff's counsel stated: 'The plaintiff moves the court that the court direct a verdict for the plaintiff, leaving nothing to the jury except the amount of damages, upon the ground and for the reason that the undisputed testimony of the defendant himself conclusively shows negligence upon his part in the operation of the automobile, and because, as a matter of law in the State of North Dakota, a seven year old child cannot be guilty of contributory negligence, leaving nothing for the jury to find except the amount of damages.'

Upon appeal from the judgment the plaintiff specifies the denial of the foregoing motion as erroneous. He also specifies certain rulings of the trial court on the reception or rejection of evidence, the refusal of requested instructions and the misinstruction of the jury in certain specified particulars. All of the specifications of error on the appeal from the judgment present statutory grounds for a new trial under the provisions of Section 28-1902 R.C.N.D.1943.

In paragraph 1 of the Syllabus of Larsen v. Friis, 48 N.D. 507, 185 N.W. 363; this court laid down the rule that, 'Where there is a motion for a new trial, rulings of the trial court which constitute proper grounds for a new trial under the statute must be presented upon such motion; otherwise they will be deemed waived.'

In O'Dell v. Hiney, 49 N.D. 160, 190 N.W. 774, paragraph 1 of the Syllabus, the rule was again stated as follows: 'Where a party moves for a new trial, he must present all grounds which he claims entitled him to a new trial. In other words, he cannot present one ground in the trial court, and another ground in the appellate court.'

In each of these cases appeals were taken from the judgment and from an order denying a new trial. The rule has been affirmed in Ruble v. Jacobson, 51 N.D. 671, 200 N.W. 688; Citizens' State Bank v. Geisen, 51 N.D. 863, 200 N.W. 1007; Kaufman Jewelry Company v. Torgerson, 57 N.D. 321, 221 N.W. 881; State ex rel. Storm v. Hought, 59 N.D. 301, 229 N.W. 371; Zimbelman v. Lah, 61 N.D. 65, 237 N.W. 207; Isensee Motors v. Godfrey, 61 N.D. 435, 238 N.W. 550. In this case all of the errors specified upon appeal from the judgment, fall within the scope of Section 28-1902 R.C.N.D. 1943 stating the grounds for a new trial. Under the rule of the foregoing authorities we give no further consideration to the appeal from the judgment, but pass to a consideration of the appeal from the order denying plaintiff's motion for a new trial. Any errors which would constitute grounds for a new trial are waived unless properly presented to the trial court on the plaintiff's motion, whether included in the specifications of error upon appeal from the judgment or not.

The only reference to the sufficiency of the evidence in plaintiff's motion for a new trial is: 'That the evidence in said action is insufficient to justify the verdict and said verdict is against the law.'

This is a generality which does not disclose wherein and to what extent the plaintiff contends the evidence is insufficient. It violates a rule of statute and decision that: 'A specification of insufficiency of the evidence to sustain the verdict or decision of the court shall point out wherein the evidence is insufficient.' Section 28-1809 R.C.N.D. 1943; Haslam v. Babcock, 71 N.D. 363, 1 N.W.2d 335; Schmidt v. Beiseker, 19 N.D. 35, 120 N.W. 1096.

The trial court filed no memorandum opinion. The order denying a new trial is silent with respect to the sufficiency of the evidence. On this point there is no action of the trial court before us for review. See Clausen v. Miller, 63 N.D. 778, 249 N.W. 791. The sufficiency of the evidence may not be reviewed on this record.

As grounds for a new trial the plaintiff specifies that the court erred in allowing ordinances of the city of Grand Forks to be submitted in evidence which ordinances were not pleaded, that the court erred in allowing the defendant to examine the parents of the plaintiff upon the care they exercised in controlling the safety of the plaintiff and instructing her as to street crossings and particularly while on bicycles, and as a final ground the plaintiff specifies, the denial of six requested instructions.

The plaintiff requested seven instructions, the first of which was given and the others refused. Numbers, two and seven, deal with the standard of care and conduct by which the acts of a child are to be judged with respect to his negligence. The seventh requested instruction reads as follows: 'You are charged that the plaintiff at the time of this accident was of such a tender age that she cannot be guilty of contributory negligence.'

The trial court gave the usual definitions of negligence and contributory negligence and then told the jury: 'Negligence, as applied to a minor child, is the doing of that which an ordinarily prudent person of the age, intelligence, experience, and capacity of such child would not do under the same or similiar circumstances, or the failure to do that which an ordinarily prudent person of the age, intelligence, experience, and capacity of said child would do under the same or similiar circumstances.'

At the time of the accident the plaintiff was seven years and eight months old. She had been riding a bicycle since she was five and could ride girls' and boys' bicycles. She had been told by her parents that when she was going to cross a street she should get off the bicycle. At the time of the accident she was riding a borrowed bicycle that belonged to a girl twelve years old. She could not reach the pedals from the seat and had to stand up to pump the bicycle.

The accident occurred at the intersection of Conklin Avenue and Lewis Boulevard in the city of Grand Forks. The plaintiff was riding along the sidewalk in an easterly direction on the north side of Conklin Avenue and when she reached the sidewalk intersection on the west side of Lewis Boulevard, she turned sharply to the right and to the south onto the crosswalk intersecting Conklin Avenue. The defendant had been driving north on Lewis Boulevard and after signaling for a left turn, at the intersection, he turned to the left and to the west where his car collided with the bicycle on which the plaintiff was riding. The defendant had entered the intersection at a speed of rrom 10 to 14 miles an hour. His brakes were in good working condition and he stopped almost immediately after the accident. His car did not run over either the plaintiff or the bicycle, but the impact caused the plaintiff injuries for which she seeks recovery in this action.

The defendant, in his answer, denies negligence on his part and alleges that the plaintiff was guilty of contributory negligence. The plaintiff contends that as a matter of law a child of seven years eight months of age cannot be guilty of contributory negligence and that the court should have so instructed the jury in accordance with the plaintiff's requested instruction. This state is without precedent on this precise question. In Ruehl v. Lidgerwood Rural Telephone Company, 23 N.D. 6, 135 N.W. 793, L.R.A. 1918C 1063; Ann.Cas.1914C, 680; this...