Geier v. Tjaden

• Decision Date: 05 December 1955
• Docket Number: No. 7457,7457
• Citation: 74 N.W.2d 361
• Parties: Estelle A. GEIER, for the use and benefit of herself and Victoria Geier, Becky Ann Geier and Edde-Jo Geier, Plaintiff and Respondent, v. Lester TJADEN and Interstate Transportation Company, a Corporation, Defendants and Appellants.
• Court: North Dakota Supreme Court

Page 361

74 N.W.2d 361

Estelle A. GEIER, for the use and benefit of herself and Victoria Geier, Becky Ann Geier and Edde-Jo Geier Plaintiff and Respondent, v. Lester TJADEN and Interstate Transportation Company, a Corporation, Defendants and Appellants.

No. 7457.

Supreme Court of North Dakota.

Dec. 5, 1955.

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 the question of the sufficiency of the evidence to sustain a verdict appellate court must take the view of the evidence which is most favorable to the verdict.

3. Where a defendant bus driver saw the rear light of a vehicle 350 to 400 ft. ahead of him upon a highway and at the same time saw the white lights of a vehicle approaching from the opposite direction, and thereafter the glare of the approaching lights obscured his view of the rear light of the vehicle ahead, and the bus driver slowed his bus to 45 miles per hour, but that after the glaring lights had passed he was so close to the car ahead that he could not avoid colliding with it even though it was parked entirely upon the shoulder of the highway and the entire surfaced portion of the highway was available for travel, the question of the bus driver's negligence was one for the jury.

4. In an action for the wrongful death of a husband and father, damages for prospective pecuniary loss awarded to the widow and children should be limited to the present value of the gross amount of such loss.

5. Where a verdict for damages for prospective loss is reasonable under the evidence when subjected to the present value test, and the trial court's instructions did not preclude an award upon a present value basis, the failure of the trial court to instruct the jury to limit recovery for prospective damages to their present worth is not prejudicial error, even where such instruction was requested.

6. An instruction to the effect that temporary blinding by bright lights is a legal excuse for failing to stop within the assured clear distance ahead was properly refused. Whether such temporary blinding would relieve party from a finding of negligence was a question for the jury.

7. An instruction that the jury might consider the possibility that a deceased might better his position was not prejudicial where the instructions limited the recovery to what the widow and children had a reasonable expectancy of receiving and prohibited an award of damages 'which, although possible, were remote, conjectural or speculative.'

8. Evidence is competent, in an action for wrongful death, to show that the deceased was skilled at trades other than the one in which he was engaged at the time of his death, to show the wages paid in those trades and the opportunity for employment in them.

9. Courts may take judicial notice of standard mortality tables and the finding of the trial court that a certain mortality table was standard will not be disturbed in the absence of any evidence to the contrary.

10. Where purported expert witness was asked to give an opinion, basing his opinion 'upon all the facts claimed to have been in existence by plaintiff's witnesses', and there is nothing in the record to show that the witness had heard or knew what plaintiff's witnesses claimed the facts to be, an objection to the foundation for the testimony was properly sustained.

11. Necessary surgical treatment of an injury, proximately caused by a defendant's negligence, even though it be the immediate cause of death is not an independent intervening cause which will relieve the defendant of liability.

12. The exclusion of the testimony of a witness though improper is not prejudicial error where the witness at some other time in the trial is allowed to testify to the same matters which had been excluded.

13. Where it appears that the alleged misconduct of counsel did not affect the verdict or deny a party a fair trial, the verdict will not be disturbed.

Hyland, Foster & Conmy, Bismarck, for appellants.

Lord, Ulmer & Murphy, Mandan, for respondents.

BURKE, Chief Justice.

This is an action for wrongful death. In her complaint plaintiff alleged that her husband received injuries, which caused his death, in a collision between a motor bus owned by the defendant, Interstate Transportation Co., and driven by the defendant, Tjaden; that her husband's injuries and death were proximately caused by the negligence of the defendant, Tjaden, acting in the course of his employment with the defendant transportation company.

In their separate answers, the defendants denied that there was any negligence on the part of the defendant, Tjaden and alleged that plaintiff's husband's injuries and death were caused by his own negligence.

The issues in the case were tried to a jury which returned a verdict in favor of the plaintiff in the total sum of $55,502.03. Judgment was entered pursuant to the verdict. Defendant has appealed from the judgment and from an order denying a motion for judgment notwithstanding the verdict or in the alternative for a new trial. There are 46 specifications of error.

We shall first consider the specification that the evidence is insufficient to sustain the verdict. Under this specification defendants assert that there is no proof of any negligence on the part of the defendant, Tjaden, that there is no proof that plaintiff's husband died as a result of injuries received in the collision and that the evidence with respect to damages will not sustain a verdict and judgment in the amount found and rendered.

On October 2, 1952, plaintiff's husband, Eddie Geier, in company of a group of people, in three cars, drove from Mandan to Minot for a religious meeting. The cars were owned by a Mr. Ellsworth, a Mr. Phillips and Lieutenant Tollerud of the Salvation Army. They left Minot on the return trip a little after 10 o'clock that evening. At a point about a mile and a half north of Bismarck, the car driven by Mr. Phillips ran out of gasoline. The three cars stopped at the side of the road and it was decided that Lt. Tollerud should go to town for gasoline. There is a direct conflict in the testimony as to the position of the parked cars upon the highway. Plaintiff's witnesses testified they were parked entirely upon the shoulder of the highway and that there was at least 18 inches clearance between the outer edge of the surfaced portion of the highway and the bodies of the cars. Defendants' witnesses testified that the parked cars extended about three feet over the surfaced portion of the highway which was 23 ft. wide.

The defendant, Tjaden, driving a passenger bus upon a regularly scheduled trip for the defendant transportation company, left Minot at about 11 o'clock p. m. His destination was Bismarck. He drove at a speed of about 50 miles per hour and at about 1 o'clock a. m. had reached a point about 2 miles north of Bismarck. According to Tjaden's testimony, as he came over a slight elevation in the highway, he noticed the white lights of a car approaching from the south and saw red lights of a southbound vehicle. As the car approached from the south its bright lights blinded him to the extent that he could no longer see the red light upon the car ahead of him. He reduced his speed to 45 miles per hour. As the northbound car passed him, he again saw the red lights, but at that time they were immediately ahead of him and there no longer remained sufficient space to turn out and avoid a collision. The right front end of the bus struck the left rear of the Ellsworth car in which plaintiff's husband was sitting. Plaintiff's husband received serious injuries the treatment of which required surgery. He died ten days after the operation. The immediate cause of death was a pulmonary embolism.

In considering the question of the sufficiency of the evidence to sustain a verdict, we must take that view of the evidence most favorable to the successful party. Froh v. Hein, 76 N.D. 701, 39 N.W.2d 11; Jacobs v. Nelson, 67 N.D. 27, 268 N.W. 873. 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. Froh v. Hein, 76 N.D. 701, 39 N.W.2d 11; Fagerlund v. Jensen, 74 N.D. 766, 24 N.W.2d 816.

We must assume therefore that the defendant, Tjaden, as he was nearing Bismarck, saw the rear light of a vehicle about 300 to 450 feet ahead of him; that at the same time he saw the bright lights of an approaching car, that the glare from the bright lights obscured his view of the red light which he had seen, that he took his foot off the accelerator and slowed down from 50 to 45 miles per hour; that after the glaring lights had passed, he saw the car in which plaintiff's husband was sitting too late to avoid a collision although that car was parked entirely off of the surfaced portion of the highway and there were no other vehicles in the vicinity which restricted his opportunity to use the entire surfaced portion of the highway in passing.

The negligence alleged is that the defendant Tjaden drove at a speed which was unreasonable in the circumstances without maintaining proper lookout and control. Tjaden knew there was a vehicle on the highway, 300 to 450 ahead of him, knowing this he made no attempt to reduce his speed below 45 miles per hour when his view of the rear light of that vehicle was obscured by the glare of approaching lights. He did not stay on the surfaced portion of the highway although there was no reason for not doing so, but drove with his right wheels at least two feet out on the shoulder of the road. Whether this conduct shows an absence of reasonable care in guarding against a potential danger which he knew lay ahead of him or a failure to keep his...