Eriksen v. Boyer

• Decision Date: 30 December 1974
• Docket Number: No. 9037,9037
• Citation: 225 N.W.2d 66
• Parties: Clyde ERIKSEN, Plaintiff and Appellee, v. Kenneth A. BOYER and Stanley Home Products, Inc., a foreign corporation, Defendants and Appellants. Civ.
• Court: North Dakota Supreme Court

Page 66

225 N.W.2d 66

Clyde ERIKSEN, Plaintiff and Appellee, v. Kenneth A. BOYER and Stanley Home Products, Inc., a foreign corporation, Defendants and Appellants.

Civ. No. 9037.

Supreme Court of North Dakota.

Dec. 30, 1974.

Syllabus by the Court

1. Trial court did not abuse its discretion in sustaining objection to question on ground that answer would be a conclusion.

2. Trial court did not err in sustaining objection to question which sought to elicit medical opinion from lay witness.

3. Where question posed required speculative and conjectural answer from witness, the sustaining by trial court of objection to question on those grounds was not abuse of discretion.

4. Trial court committed no error in overruling objection to hypothetical question posed to physician.

5. Whether injuries caused by plaintiff's second accident which occurred when he fell while on crutches were proximately caused by negligence of defendant and whether plaintiff was contributorily negligent in causing second accident were questions for jury.

6. Where plaintiff admitted not sounding horn in attempting to pass defendant's vehicle, it was not prejudicial error for trial court to instruct jury that a passing or overtaking driver shall sound his horn as required by Section 39--10--11, N.D.C.C.; that a driver shall sound his horn whenever reasonably necessary for safe operation as required by Section 39--21--36, N.D.C.C.; and that a violation of law is evidence of negligence for the jury to consider.

7. Whether failure of passing or overtaking driver to sound horn was a proximate cause of injury incurred by passing driver is question for jury.

8. Instruction to jury on proximate cause which could be understood as stating that contributory negligence is an intervening cause insulating defendant from liability for his own negligence was not prejudicial error.

9. Court's instruction on emergency doctrine was not erroneous where evidence adduced at the trial would permit the conclusion that a sudden emergency, not the fault of the plaintiff, occurred.

10. Trial court did not err in failing to give instruction to jury requested by party where instruction given by court adequately covered the subject matter of the requested instruction.

11. Trial judge correctly refused to give instruction that plaintiff's damages in tort were not subject to income tax.

12. Fact that plaintiff's attorney may have contingent-fee agreement whereby attorney's fees will reduce net recovery to plaintiff should not be put before jury by court in its instructions.

13. In determining whether portion of instructions to jury is prejudicial, reviewing court must read and construe instructions as a whole.

14. Instruction to jury seemingly broaching the subject of comparative negligence in case tried before comparative negligence became applicable is erroneous, but when jury instructions are considered as a whole, the challenged instruction was not prejudicial since its location (in the portion of the instructions relating to damages) indicated that it related to burden of proof as to damages, and the instructions were otherwise correct.

15. Verdict of $53,000 for plaintiff in tort action is not excessive under the circumstances in this case, and the trial judge did not abuse his discretion in finding that the amount of the verdict was not so unreasonable and extreme as to indicate passion and prejudice on the part of the jury.

16. Trial judge did not abuse his discretion in holding that the jury verdict was supported by the evidence.

Vogel, Vogel, Brantner & Kelly, Fargo, for plaintiff and appellee.

Tenneson, Serkland, Lundberg & Erickson, Fargo, for defendants and appellants.

VOGEL, Judge.

Defendants-appellants, Kenneth A. Boyer and Stanley Home Products, Inc., appeal from an order of the district court of Barnes County denying their motion for judgment notwithstanding the verdict or, in the alternative, for a new trial. Boyer was an employee of Stanley and engaged in Stanley's business at the time of the accident which resulted in the action and subsequent appeal. We will refer to them jointly hereinafter as Boyer. The vehicle Boyer was driving was a 2-ton Chevrolet truck with a 16-foot van. It was involved in a collision with a 1969 Oldsmobile Cutlass driven by the plaintiff, Eriksen, on September 30, 1970. The accident occurred when Boyer was making a left turn into a farm driveway while Eriksen was attempting to pass the truck. The weather and road conditions were excellent, there was no nearby traffic, and no apparent explanation for the collision other than driver error. There is disputed testimony as to speed, but no claim of violation of the speed limit. There is also disputed testimony as to whether Boyer signaled for a left turn and as to the rapidity of his deceleration prior to commencing the turn. Eriksen admits he did not sound his horn.

Eriksen suffered, among other injuries, a broken leg. After hospitalization, he was released on October 21, 1970, to go home on crutches with instructions not to use his injured right leg. On October 26, 1970, after getting around on the good leg and the crutches, he attempted to sit down on a davenport in his trailer home. His left leg, apparently tired by unusual activity, buckled and Eriksen fell, re-injuring his right leg. Further surgery and hospitalization and expense resulted.

After a trial, the jury awarded Eriksen $53,000, inclusive of out-of-pocket expenses of $10,032.95 and lost income of $2,860, and dismissed a counterclaim for property damage by Boyer. Boyer moved for judgment notwithstanding the verdict or for a new trial, the motion was denied, and this appeal followed.

Boyer claims error in several evidentiary rulings by the trial court. The first assertion is that the court erred in sustaining an objection to questions directed to Gerald Harrington, an eyewitness driver approaching from the opposite direction, who saw the collision from one-eighth to one-fourth mile away. On cross-examination, he was asked whether he was concerned about whether the truck could have safely made the turn into the intersection in front of his car if the collision had not occurred. An objection that the question called for a conclusion was sustained. The second assertion relates to cross-examination of Eriksen, during which he was asked if he was satisfied that the doctor who treated him for the first injury has 'performed the best medical practice that he was capable of.' An objection that this called for a medical opinion was sustained. The third allegation of error arises from interrogation of Boyer on direct examination as to why he didn't see the vehicle behind him, after having stated that he looked twice in the rear-view mirror and saw nothing. An objection to the question on the ground that it was conjectural and speculative was sustained, but the court said that the witness could state the circumstances and the jury would determine why he didn't see the vehicle. Similar rulings were made when Boyer's attorney asked him if in the past he had heard horns when people passed his truck and whether he could hear the horn of a vehicle behind him while he was in the cab of the truck. The court, pointing out that Eriksen admitted not honking the horn, sustained the objection.

Boyer also objects to the overruling of certain objections made on his behalf to hypothetical questions to physicians as to whether Eriksen's injured right leg would be weak and unsteady and whether the original accident was a competent producing cause of the injuries found after the second accident.

We find all of the rulings outlined above to have been well within the discretion of the trial court.

Boyer maintained consistently throughout the trial that the second accident, the fall in the trailer home, was due to the negligence of Eriksen as a matter of law, and that all evidence as to the second accident and the resulting injuries and damages therefrom were inadmissible, and, if admitted, should be stricken. He likewise objected to instructions permitting recovery of the damages resulting from the second accident.

The instruction given on this point is as follows:

'You are instructed that if a person has been injured, as shown by the evidence in this case, and if you find from the evidence that as a result of said injury he was in a weakened physical condition and disability which subjects him, while he is exercising due care, to another mishap, he may recover if the subsequent mishap was one normally to be expected in view of his condition, and the further injury that he sustains as a result of the subsequent mishap may be added to the original injury. If on the other hand the subsequent mishap or second injury was the result of negligence of such person and is the result of said person's lack of due care, the defendant may not be charged with such additional injury so received.'

Although the doctrine could be stated more concisely, the instruction is a correct statement of the law. Restatement of the Law, Torts, Second, Sec. 460; Stephenson v. F. W. Woolworth Co., 277 Minn. 190, 152 N.W.2d 138, 31 A.L.R.2d 990 (1967); Squires v. Reynolds, 125 Conn. 366, 5 A.2d 877 (1939). And see Polucha v. Landes, 60 N.D. 159, 233 N.W. 264 (1930).

The question of whether Eriksen was contributorily negligent in the happening of the second accident, as in the first, was for the jury. Muhlhauser v. Archie Campbell Construction Co., 160 N.W.2d 524 (N.D.1968).

The next contention of Boyer is that the court erred in instructing the jury as to statutory provisions relating to the sounding of horns. There are two such statutory provisions, and both were read to the jury.

'The driver of a vehicle overtaking another vehicle proceeding in the same direction shall pass to the left thereof at a safe distance and shall not again drive to the right side of the roadway until safely clear of the overtaken vehicle. When not within a business or...