Froh v. Hein
| Decision Date | 26 August 1949 |
| Docket Number | 7127. |
| Citation | 39 N.W.2d 11,76 N.D. 701 |
| Parties | FROH v. HEIN et al. |
| Court | North Dakota Supreme Court |
Syllabus by the Court.
1. Questions of negligence and probable cause are ordinarily questions of fact for the jury. They become questions of law only when the state of the record is such that reasonable men can draw but one conclusion therefrom.
2. In considering a specification that a verdict is contrary to the evidence, the court will assume the truth of that version of the evidence which tends to support the verdict.
3. Gross negligence is to all intents and purposes, no care at all. It is the omission of the care which even the most inattentive or thoughtless seldom fail to take of their own concerns. It evinces a reckless temperament. It is a lack of care which is practically willful in its nature.
4. Under the evidence in this case the question of whether the defendant was guilty of gross negligence was one for the jury.
5. A party must offer to prove the facts sought to be elicited from a witness before he can assign error upon an objection sustained to a question, the competency of which is not apparent upon its face.
6. Instructions to a jury must be considered in their entirety. If the effect of the whole is to outline the issues in the case correctly and fairly, an isolated improper statement contained therein will not be considered prejudicial error.
7. It was improper for the trial court to mention in the instructions in this case an issue which he did not submit to the jury but considering the charge as a whole such mention did not constitute prejudicial error.
8. Where a party made no requests for instructions he cannot predicate error on a claim that the instructions were not sufficiently specific unless there were omissions in the instructions which amounted to a misdirection.
9. Where a party made no requests for instructions, instructions which correctly charged the jury upon the issues raised by the pleadings were sufficient.
10. Where as in this case the evidence presented a question of fact for the jury, the question of whether a new trial should have been granted because of the insufficiency of the evidence, was one within the sound judicial discretion of the trial court.
Max A. Wishek, Ashley (Sullivan, Fleck, Kelsch & Lord Mandan, of counsel), for plaintiff and appellant.
Nilles, Oehlert & Nilles, Fargo, for defendant and respondent.
This is an action for damages for personal injuries arising as the result of the collision of two automobiles. Plaintiff Walter Froh, brought the action on behalf of himself personally and as guardian ad litem for his minor son, Walter Froh, Jr. He alleged in his complaint that his son Walter Froh, Jr. while riding as a guest in an automobile driven by the defendant DeLane Hein received personal injuries which were proximately caused by the gross negligence of DeLane Hein. He asked damages in the sum of $7,500.00 for personal injuries to his son, $1,500.00 for loss of wages suffered by his son and for $400.00 for medical and hospital bills incurred by himself. In their joint answer, the defendants W. L. Hein and DeLane Hein alleged that the damages suffered by plaintiffs were 'due wholly and solely to the carelessness, recklessness and negligence of a driver on the highway other than the defendants and that the negligence of the plaintiff (Walter Froh, Jr.) contributed thereto.' The action was tried before a jury in the District Court of McIntosh County. The jury returned a verdict in favor of the defendants for the dismissal of the action. Judgment was entered pursuant to the verdict. Thereafter plaintiffs moved for a new trial. This motion was denied and plaintiffs have appealed from the judgment and from the order denying a new trial.
As stated by plaintiffs and appellants in their brief, 'The material issues presented by the Specifications of error upon appeal are:
'1. Is the verdict for the defendant against the clear weight of the evidence and the law applicable thereto?
'2. Did the Trial Court commit prejudicial error in excluding evidence to show that DeLane Hein had been drinking at the dance pavilion shortly before the collision occurred?
'3. Did the Trial Court commit prejudicial error in failing to properly instruct the jury upon the defense of contributory negligence raised by defendants' answer and their evidence?
'4. Did the Trial Court commit prejudicial error in failing to properly instruct the jury upon the controlling principles of law applicable to the operation of motor vehicles, within the issues presented by the pleadings and evidence?
We shall consider the issues in the order stated.
Plaintiff contends that the verdict is against the clear weight of the evidence in that the evidence demonstrates that defendant DeLane Hein was guilty of gross negligence as a matter of law. It is conceded that the guest statute (Chapter 39-15 NDRC 1943) applies and that gross negligence must be shown to charge defendants with liability in this case. Questions of negligence and probable cause are ordinarily questions of fact for the jury. They become questions of law only when the state of the record is such that reasonable men can draw but one conclusion therefrom. Armstrong v. McDonald, 72 N.D. 28, 4 N.W.2d 191; Leonard v. North Dakota Cooperative Wool Marketing Ass'n, 72 N.D. 310, 6 N.W.2d 576; Fagerlund v. Jensen, 74 N.D. 766, 24 N.W.2d 816. In considering a specification that a verdict is contrary to the evidence, the court will assume the truth of that version of the evidence which tends to support the verdict. Jacobs v. Nelson, 67 N.D. 27, 268 N.W. 873.
On July 27, 1946, the defendant, DeLane Hein was twenty years old. He was an experienced automobile driver, having driven for eight years and acted as chauffeur for his commanding officer during his army service. On the evening of that date he had borrowed his father's car a Ford V-8 which recently had been thoroughly reconditioned. It was in the best of driving condition. At approximately eleven o'clock at night DeLane with two male companions, one of whom was the plaintiff Walter Froh, Jr., drove to a dance pavilion at Lake Hoskins, located about three miles west of Ashley upon State Highway 11. They danced until the pavilion closed at midnight. They invited two young ladies to ride home with them. On the way home one of the young ladies rode in the back seat of the car with Froh and the other rode in front between Hein and his other male companion. Highway 11 except for a short distance west of Ashley is a graveled highway. The night was still and the traffic created by the cars of returning dancers churned up a cloud of dust which blanketed the road. Hein was neither the first nor the last to leave Lake Hoskins. On his way towards town, the dust was sufficiently dense to reduce visibility to a distance of 150 to 175 feet. Driving towards Ashley he passed three or four cars reaching a maximum speed of 55 miles an hour during such passings. Other cars on the highway were traveling at a rate of 35 to 40 miles an hour. A short distance west of Ashley on Highway 11 there is a railway crossing. Westward from this crossing the highway is down grade. At a point about a mile west of Ashley, Hein had just passed a car, reaching a speed of 55 miles an hour in so doing, when an approaching car crossed the railway tracks 600 to 800 feet east of his car. As the lights of this car shifted down hill, their glare partially blinded Hein. Having just passed a car he was still in the north or west bound lane of the highway. He had just turned his car to re-enter the south or east bound lane of the highway when another east bound car, without a tail light 'loomed up' ten or twenty feet ahead of him. This car was moving at a rate of about 20 miles an hour. Hein immediately pushed the brake pedal all the way to the floor but he was too close to reduce speed sufficiently to avoid a collision and he crashed into the left rear of the car ahead. Both cars went into the ditch but neither turned over. All persons in the Hein car suffered cuts and contusions but Froh was the only one who was seriously injured. Hein's testimony is that all the way from Lake Hoskins to the point of collision, he drove with both hands on the wheel and kept a constant watch on the road ahead except for an occasional glance in the rear view mirror to check on the traffic behind him.
The question is whether these facts would permit reasonable men to reach only the single inference or conclusion that DeLane Hein was guilty of gross negligence.
"Gross negligence' is, to all intents and purposes, no care at all. It is the omission of the care which even the most inattentive or thoughtless seldom fail to take of their own concerns. It evinces a reckless temperament. It is a lack of care which is practically willful in its nature.' Rubbelke v. Jacobsen, 66 N.D. 720, 722, 268 N.W. 675, 676; Erickson v. Foley, 65 N.D. 737, 744, 262 N.W. 177.
Excessive speed in the circumstances is the only act of alleged negligence to be considered under the pleadings and the evidence. Was that speed so excessive that a jury of reasonable men had no alternative but to call it gross negligence? We think not. The jury might have concluded that the collision would not have happened, if the car which DeLane Hein struck had been proceeding at a rate of speed normally to be expected upon a through highway, or if it had had a tail light, or if the headlights of the approaching car had not suddenly turned down the hill and aggravated the obscuring effect of the dust upon the road. Of all the factors which...
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