Gravseth v. Farmers Union Oil Co. of Minot

• Decision Date: 19 April 1961
• Docket Number: No. 7931,7931
• Citation: 108 N.W.2d 785
• Parties: Ernest GRAVSETH, Individually and as Trustee for North Dakota Workmen's Compensation Bureau, Plaintiff and Respondent, v. FARMERS UNION OIL COMPANY OF MINOT, North Dakota, a Corporation, Defendant and Appellant.
• Court: North Dakota Supreme Court

Page 785

108 N.W.2d 785

Ernest GRAVSETH, Individually and as Trustee for North Dakota Workmen's Compensation Bureau, Plaintiff and Respondent, v.FARMERS UNION OIL COMPANY OF MINOT, North Dakota, a Corporation, Defendant and Appellant.

No. 7931.

Supreme Court of North Dakota.

April 19, 1961.

Syllabus by the Court.

1.Where, on motion for judgment notwithstanding the verdict or new trial, and on appeal, instructions given by trial court are not challenged by specifications

of error, they become the law of the case, and will be applied in determining question of negligence and proximate cause.

2.Correctness of decision denying motion for judgment notwithstanding the verdict depends on whether movant was entitled to directed verdict when motion therefor was made.

3.On motion for judgment notwithstanding verdict, question is whether evidence when viewed in light most favorable to opposing party will sustain verdict.

4.Evidence of the violation of a statutory rule, adopted as the law of the case, relating to safety on the highways is evidence of negligence.

5.Questions of negligence, contributory negligence and proximate cause are questions of fact for the jury, unless the evidence is such that reasonable men can draw but one conclusion therefrom, in which event such questions become questions of law for the court.

6.No hard and fast rule can be laid down to determine whether motorist was guilty to contributory negligence in failing to stop or turn aside to avoid a collision with a stalled vehicle obstructing highway.Facts and circumstances of each particular case must be considered.

7.In damage action for injuries to plaintiff resulting from collision, where plaintiff's automobile ran into back end of defendant's truck which was stalled on highway in snowdrift 200 feet below crest of hill, and highway from crest of hill was slippery because it was covered with compacted snow and ice, and plaintiff, who had first view of truck forty feet from crest of hill when highway before that point was in good winter driving condition, testified he was traveling thirty to thirty-five miles per hour and immediately applied brakes upon seeing truck stuck but was unable to stop or turn, and that his automobile slid on compacted snow and ice into truck, and the evidence established defendant's truck driver had not put out warning flags 500 feet in direction of hill crest as required by the law of the case, whether plaintiff was guilty of contributory negligence was question for the jury.

8.Whether evidence should be excluded for remoteness rests largely in the discretion of the trial court and, on appeal, trial court's ruling will not be disturbed in absence of showing it affected the substantial rights of the parties.Rule 61, N.D.R.Civ.P.

9.Denial of motion for mistrial will not be reviewed by appellate court on appeal in absence of a showing of abuse of discretion by trial court.

10.Where court's instructions were sufficiently definite to enable jury to fully understand the tests of control of vehicle driven on highways as provided by statutes, it was not prejudicial error to fail to give a requested specific instruction thereon.

11.Where court's instructions were sufficiently broad to properly cover subject matter of requested instruction not given, court need not pass on correctness of requested instruction.

12.A motion for a new trial on ground of excessiveness of verdict indicating passion and prejudice is addressed to the sound judicial discretion of the trial court and the appellate court will not reverse the order of the trial court, unless an abuse of discretion is clearly shown.

13.Jury award of $19,809.75 in automobile personal injury action, where evidence substantiates special damages of $2,309.75, indicating jury found $17,500 in compensatory damages for injuries to thirty-four year old man who suffered a triple fracture to jaw, loss of all teeth, severance of alveolar nerve causing anesthesia to portion of jaw, who suffers daily headaches, a neck pain and has permanent scar running from middle of lower lip extending downward to a point three inches below his left ear, where trial court denied motion for new trial on ground of excessiveness of verdict indicating passion and prejudice, does not indicate an abuse of discretion resulting in injustice on the basis of the record in this case.

McGee, Van Sickle & Hankla, Minot, for defendant and appellant.

Ilvedson, Pringle, Herigstad & Meschke, Minot, for plaintiff and respondent.

TEIGEN, Judge.

This is an appeal from the judgment, and from the order of the trial court denying appellant's motion for judgment notwithstanding the verdict or for a new trial.

Plaintiff alleges that while driving eastward on County HighwayNo. 16, approximately nine miles south and four miles east of Minot, he was suddenly and without warning of any kind confronted with defendant's truck in a stuck position in his way of travel; that his vehicle rammed into the rear of defendant's truck causing him damage; that defendant's truck, operated by its employee, had become stuck in a snowdrift at the base of a hill; that it was negligently and carelessly left and abandoned in that position and that defendant's employee did negligently, carelessly and in violation of law fail to place out on the highway warnings of any kind; that he knew of the extremely dangerous position of his truck and of the slippery and dangerous condition of the hill which he had driven down before he had become stuck.

The defendant admits there was a collision.It admits it is a domestic corporation, that the truck driver was its employee, and that it was the owner of the truck.It admits on the day in question its said truck became stuck in a snowdrift and that plaintiff drove his automobile into said truck.The defendant claims the collision was caused by the negligence and carelessness of the plaintiff, which so contributed to the collision as to prevent his recovery.

As a counterclaim defendant asked judgment against plaintiff for damages to its truck and for the loss of 610 gallons of diesel fuel.The reply denies the allegations of the answer.

At the close of the entire case the defendant moved the court to direct a verdict in its favor on the ground that plaintiff wholly failed to prove his cause of action, and on the further ground that the evidence showed the plaintiff was guilty of contributory negligence as a matter of law.These motions were denied.The case was submitted to the jury and the verdict was returned in favor of the plaintiff in the amount of $19,809.75.Judgment was entered thereon and defendant moved for judgment notwithstanding the verdict or, in the alternative, for a new trial.This motion was denied.The defendant appealed from the judgment and from the order denying the motion.The grounds argued are the insufficiency of the evidence to justify the verdict, errors of law and excessiveness of the verdict.

It is the basic contention of the appellant that the negligence of the appellant's employee was not the proximate cause of the injury; that the plaintiff was guilty of negligence as a matter of law and that his negligence contributed proximately to his injury.

On two occasions during the trial the appellant moved for a mistrial, which motions were denied by the court, and it now specifies this as error.The appellant also requested certain instructions and specifies it as error that the court refused to give one of them.

The facts are not in dispute.The appellant introduced no evidence.The appellant's two-ton International truck with tank, loaded with 1,000 gallons of fuel, while traveling in an easterly direction on County HighwayNo. 16, had become stuck in a snowdrift about 200 feet below the crest of a hill.The highway for a distance of about twenty feet behind the truck was completely covered with the snowdrift and from that point to the crest of the hill it was covered with compacted snow and ice and was very slippery.The appellant's employee, while proceeding over said highway, was traveling at a rate of speed of from thirty to thirty-five miles per hour.When he arrived at the crest of said hill he discovered the snowbank about halfway down the hill.He testified he tried to stop.He applied the brakes but was unable to stop because of the slippery condition of the highway.The truck continued forward, went into the snowbank and became stuck.The highway was twenty to twenty-one feet in width.The truck was in the center thereof angled slightly to the left or northeast.The truck carried no warning signals or flags.The appellant's employee was alone.He left the truck and proceeded on foot to the nearest farm to the east, leaving the truck unattended and without having placed on the highway to either side of it any warning signals or flags.

The plaintiff, driving his 1958 Volkswagon from Minot, had proceeded south on HighwayNo. 83 to the intersection with County HighwayNo. 16 where he turned east.He drove east on County HighwayNo. 16, a distance of four or four and one-half miles, to the point where the truck was stuck.The county highway was a high, well-graded, graveled surface highway in good winter driving condition.There had been a severe snowstorm the day before and the fields and the ditches were filled with snow; however, the county highway was free and clear of snow except for a few small 'finger drifts.'It clearly appears the highway for this first four or four and one-half miles was not hazardous.It was in good winter driving condition.The plaintiff was driving in third gear and at a speed of from thirty to forty miles per hour.This is the standard operating procedure for a Volkswagon.He testified that when he arrived near the crest of the hill in question, he was traveling from thirty to thirty-five miles per hour and still in third gear.The hill in question separated two ravines.

According to the testimony...