Gleson v. Thompson
| Decision Date | 07 December 1967 |
| Docket Number | No. 8450,8450 |
| Citation | 154 N.W.2d 780 |
| Parties | Gertrude GLESON, Plaintiff and Appellant, v. James THOMPSON, Defendant and Respondent. |
| Court | North Dakota Supreme Court |
Syllabus by the Court
1. A motion for judgment notwithstanding the verdict or in the alternative for a new trial made on the ground of insufficiency of the evidence or errors of law must specify with particularity wherein the evidence was insufficient or wherein errors were made. Nevertheless, when the opposing party does not object to the movant's failure to specify with particularity the errors of law complained of or the insufficiency of the evidence, the trial court may consider those issues.
2. Questions of negligence, proximate cause, contributory negligence, and assumption of risk are ordinarily questions of fact for the jury; it is only when the evidence is such that reasonable men can draw but one conclusion therefrom that they become questions of law for the court.
3. In determining the sufficiency of the evidence to sustain the verdict, the evidence must be viewed in the light most favorable to the verdict.
4. The credibility of the witnesses and the weight to be given to their testimony are questions of fact for the jury to determine.
5. Viewing the evidence in this case in the light most favorable to the verdict, it is held that the jury could have found that the decedent was negligent in failing to keep such a lookout as would permit him to see what a person in the exercise of ordinary care would have seen in like circumstances, or that he was negligent in failing to drive at such a speed as to be able to stop within the assured clear distance ahead, and that his negligence contributed proximately to the collision.
6. Viewing the evidence in this case in the light most favorable to the verdict from the standpoint of sufficiency of the evidence, it is held that no basis exists for granting either a judgment notwithstanding the verdict or a new trial.
7. When at the close of all the evidence one party moves for a directed verdict in his favor and the motion is resisted by the adverse party, the court must submit to the jury the issues of all claims as to which evidence has been received, and as to such claims the motion shall be denied. N.D.R.Civ.P. Rule 50(a).
8. In determining the validity of a ruling on a motion for a directed verdict in connection with a motion for judgment notwithstanding the verdict or in the alternative for a new trial, the Supreme Court must consider the evidence in the light most favorable to the party against whom the motion was made. If honest and intelligent men may fairly differ in their conclusions from the evidence upon any material fact in the case, it is for the jury to pass upon such evidence.
9. The facts in this case having been reviewed, it is held that honest and intelligent men might fairly differ in their conclusions from the evidence and that it was proper for the trial court to permit the jury to pass on the evidence; thus, it was proper for the trial court to deny the motions for a directed verdict.
10. An article which relates to or tends to elucidate or explain an issue is admissible in evidence when duly identified and shown to be in substantially the same condition as at the time in issue.
11. The admission or exclusion of demonstrative evidence is addressed to the sound discretion of the trial court.
12. For reasons stated in the opinion, it is held that the trial court abused its discretion in receiving a damaged road sign in evidence, but that the admission of the damaged sign constituted harmless error.
13. The question of sufficiency of foundation for the admission of a photograph in evidence is a matter within the discretion of the trial judge.
14. The fact that photographs were taken at a time remote from the transaction in question does not render them inadmissible if witnesses are able to testify that they are correct representations of the conditions existing at the time in question.
15. For reasons stated in the opinion it is held that the admission in evidence of certain photographs of an automobile taken a week after it had been moved from the scene of the accident did not constitute an abuse of the trial court's discretion and therefore was not error.
16. In an action for damages growing out of the collision of motor vehicles the admission in evidence of testimony as to the speed of one of them from a point about 1/8 mile from the scene of the accident to within 200 to 300 feet from the scene of the accident was within the discretion of the trial court.
17. For reasons stated in the opinion it is held that the exclusion of testimony as to the speed of a vehicle shortly before the accident in the instant case was not an abuse of discretion on the part of the trial court and therefore was not error.
18. When no objection was made at the time a comment was made by the judge and no request was made for a curative instruction to the jury concerning the comment, the appellant waived any right to urge the comment as error on appeal.
19. Specifications of error not argued in the appellant's brief are deemed abandoned.
Duffy & Haugland, Devils Lake, and Robert G. Manly, New Rockford, for appellant.
Idean M. Locken, Lakota, for respondent.
Pursuant to N.D.C.C. Chapter 32--21, the plaintiff, Gertrude Gleson, widow of Marvin Gleson, brought an action for wrongful death against the defendant, James Thompson, by amended complaint dated March 23, 1966. In the complaint Mrs. Gleson alleged that at about 8:00 a.m., October 5, 1964, her husband was driving east on an arterial county road 2 miles south of Kloten, in Nelson County, North Dakota, and that he was driving carefully and at a reasonable and lawful speed. She further alleged that at the same time Mr. Thompson was driving south on a county road that intersected the road on which Mr. Gleson was traveling, and that Mr. Thompson was operating his car negligently, in that he was driving at an excessive speed without having his car under proper control, without keeping an adequate lookout, and without yielding the right-of-way to Mr. Gleson's car, resulting in a collision between the two cars and injuries to Mr. Gleson which caused his immediate death. She sought $850 in special damages for funeral expenses and $19,150 in general damages, or a total judgment of $20,000 plus costs.
In his answer Mr. Thompson admitted, among other things, that a collision occurred between his vehicle and Mr. Gleson's vehicle at the time and place alleged and asserted as an affirmative defense that any injuries sustained by Mr. Gleson which may have caused or contributed to his death, were caused or contributed to by Mr. Gleson's own carelessness, in that he failed to have his vehicle under control, did not maintain a proper lookout, was driving at an excessive speed, and failed to yield the right-of-way to Mr. Thompson's vehicle, which had entered the intersection before the vehicle driven by Mr. Gleson.
At the close of the plaintiff's case and again when all the evidence had been submitted, the plaintiff made a motion for a directed verdict. Both motions were denied. When the jury returned a verdict for a dismissal of Mrs. Gleson's action, she made a motion for judgment notwithstanding the verdict or in the alternative for a new trial. That motion was also denied by the trial court.
Mrs. Gleson appeals to this court from the judgment rendered on the verdict, as well as from the order denying the motion for judgment notwithstanding the verdict or in the alternative for a new trial.
We shall consider first the appeal from the order denying the motion for judgment notwithstanding the verdict or in the alternative for a new trial.
Mr. Thompson contends that because Mrs. Gleson failed to specify with particularity the errors of law complained of or the insufficiency of the evidence to support the verdict in her motion for judgment notwithstanding the verdict or in the alternative for a new trial, those issues should not be considered by this court.
Pertinent to this contention is N.D.C.C. § 28--18--09:
28--18--09. Specifications of errors and insufficiency of the evidence.--A party desiring to make a motion for a new trial or to appeal from a judgment or other determination of a district court or county court with increased jurisdiction, except upon appeals triable de novo in the supreme court, shall serve with the notice of motion, or notice of appeal, a concise statement of the errors of law he complains of, and if he claims the evidence is insufficient to support the verdict or that the evidence is of such character that the verdict should be set aside as a matter of discretion, he shall so specify. A specification of insufficiency of the evidence to sustain the verdict or decision of the court shall point out wherein the evidence is insufficient and it shall be proper to include in such specification, specifications of facts conclusively established, together with the facts claimed not to be established, in such manner as to show intelligibly wherein, on the whole case, the verdict or decision is not supported by the evidence.
Consistent with that statute is what we said in the syllabus of a recent opinion on an appeal from an order granting a motion for judgment notwithstanding the verdict:
A motion for judgment notwithstanding the verdict made on the ground of insufficiency of the evidence or errors of law must specify with particularity wherein the evidence was insufficient or wherein errors were made.
Erhardt v. Gold Seal Chinchillas, Inc., 144 N.W.2d 744 (N.D.1966), Syllabus 3.
The same rule would apply in an appeal from an order granting or denying a motion for a new trial.
Notwithstanding that rule, when the opposing party does not object to the movant's failure to specify with particularity the errors of law complained of or the insufficiency of the evidence, the...
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