Grenz v. Werre

Decision Date13 July 1964
Docket NumberNo. 8105,8105
Citation129 N.W.2d 681
PartiesJohn G. GRENZ, for himself and for the Benefit of Irene Grenz, heirs at law of Gene J. Grenz, deceased, Plaintiff and Respondent, v. William J. WERRE and Curtis Werre, Defendants and Appellants.
CourtNorth Dakota Supreme Court

Syllabus by the Court

1. Gross negligence, proximate cause, contributory negligence and assumption of risk are ordinarily questions of fact for the jury. They become questions of law for the court only where the evidence is such that reasonable minds can draw but one conclusion therefrom.

2. In considering the sufficiency of the evidence to sustain the verdict, the Court will adopt the version of the evidence which is most favorable to the verdict.

3. Credibility of witnesses and weight to be given to their testimony are questions of fact for the jury.

4. Where facts and circumstances justify inference that driver of a motor vehicle was proceeding at high rate of speed and voluntarily and deliberately directed his attention elsewhere than to the highway upon which he was driving, and as a proximate result of his inattention, even though momentary, an accident occurs, the question of his gross negligence is for the jury.

5. An assignment of error in the admission of evidence will not be reviewed unless timely and proper objection is made to the admission thereof.

6. The admission of demonstrative evidence is addressed to the sound discretion of the trial court and reception of jacket worn by the decedent at the time he was killed, for reasons stated in the opinion, was not prejudicial error.

7. Error is never presumed upon appeal. The burden resting upon appellant is not sustained by showing mere error; he must show the error was prejudicial.

8. Evidence of tire or skid marks observed within a reasonable time after collision is admissible to show how collision actually occurred. The inferences to be drawn therefrom are in the sole province of the jury.

9. A medical expert is qualified to express an opinion based upon medical probability or certainty but not on mere medical possibility.

10. Evidence offered to show motorist had reputation for being careful and cautious driver is inadmissible to prove he was not guilty of gross negligence at time collision occurred.

11. Though an instruction standing alone may be insufficient or erroneous, it must be considered in connection with remainder of charge, and if whole charge taken together correctly advises jury as to the law, the error, if any, is thereby cured.

12. Where an appellant has made a motion for a new trial, he may not, for the first time on appeal, challenge the verdict as being so high and excessive as to show that it was the result of passion or prejudice.

13. The determination of the amount of damages to be awarded for pecuniary loss, if any, sustained by parents through the death of a minor child, caused by the wrongful act of the defendants, is not susceptible to ascertainment with mathematical accuracy or certainty but must necessarily be left to the common knowledge, good sense and practical judgment of the jury.

14. Where a verdict of the jury was not arrived at by chance, affidavits of jurors cannot be considered to impeach their verdict or as a ground for new trial.

15. Motion for judgment notwithstanding verdict will not be granted where moving party is not entitled to a judgment on the merits as a matter of law.

16. A motion for new trial on the ground of the insufficiency of the evidence is addressed to the sound judicial discretion of trial court, and unless a manifest abuse of that discretion is clearly established, the action of trial court will not be disturbed upon appeal.

Breidenbach & Milhollan, Bismarck, for plaintiff and respondent.

Jansonius, Fleck, Smith, Mather & Strutz, Bismarck, and Gordon O. Hoberg, Napoleon, for defendants and appellants.

KELSCH, District Judge.

The plaintiff brought this action, for himself and for the use and benefit of his wife and three children, against the defendants, to recover damages for the wrongful death of his son, Gene J. Grenz, who was killed while riding as a guest in an automobile driven by Curtis Werre.

The plaintiff claims, in substance, that on the 22nd day of May, 1962, the defendant Curtis Werre, while accompanied by the decedent and one Delzer, was driving his father's 1957 Chevrolet sedan with his knowledge and consent upon a public highway in the vicinity of Napoleon; that he drove in an easterly direction toward Burnstad, in a grossly negligent manner and at an excessive rate of speed, so as to cause said automobile to swerve out of control into the north lane and collide with a car proceeding in a westerly direction on said highway, as a result of which Gene J. Grenz was instantly killed.

The defendants in their joint amended answer deny that Curtis Werre was guilty of any negligence; claim that the negligence of the driver of the other car was the proximate cause of said collision, and, for a further defense, claim that the decedent and Werre were engaged in a joint venture and that he assumed the risk thereof and that the decedent was guilty of contributory negligence.

Upon the trial of the case, after the plaintiff rested, and again at the close of the entire case, the defendants moved the court for a directed verdict and for a dismissal of the action. Plaintiff resisted both motions and the trial court denied the same.

The case was tried to a jury and the jury returned a verdict in favor of the plaintiff for $9,764.63. Judgment was entered thereon accordingly. Thereafter the defendants moved the court for judgment notwithstanding the verdict, or for a new trial. The trial court denied both of said motions, and the defendants have appealed to this Court from both said judgment and order.

The appellants rely upon the insufficiency of the evidence to sustain the verdict, and several errors of law, for a reversal of said judgment and order. They claim, in substance:

1. That the evidence is insufficient to prove that Curtis Werre was guilty of gross negligence of wilful misconduct;

2. That the negligence of Curtis Werre, if any, was not the proximate cause of said automobile collision 3. That the trial court erred:

(1) In admitting: (a) the report card; (b) the athletic awards; (c) pictures; and (d) wearing apparel of the deceased, in evidence; and

(2) In admitting plaintiff's exhibit #2 in evidence, showing skid marks upon the highway, without a proper foundation having been laid showing: (2) that it was drawn to scale; (b) that the measurements it contained were reasonably accurate; and (c) that it was a true representation of the conditions that existed immediately after said collision occurred.

4. That the court erred:

(1) In excluding testimony of Dr. Buckingham, offered by defendants to show Curtis Werre was suffering from amnesia or loss of memory, at the time of the trial; and

(2) In excluding testimony offered by the defendants to prove that the reputation of Curtis Werre, for careful driving, was good at the high school he attended.

5. That the trial court erred in instructing the jury: 'Members of the jury, the court instructs that a pecuniary loss need not be established by proof in dollars and cents. A substantial loss will be presumed.'

6. That the jury, in returning a verdict for plaintiff, after it had found that Curtis Werre was not guilty of gross negligence, was guilty of misconduct.

7. That the verdict of the jury is contrary to the evidence and law applicable thereto; and

8. That the trial court committed prejudicial error in denying appellants' motion for judgment notwithstanding the verdict or for a new trial.

Manifestly appellants' first two specifications involve substantially the same evidence. They present questions of the sufficiency of the evidence to sustain the verdict.

To determine these questions we must review and consider the sufficiency of the evidence in the light of certain well-established rules of law.

(1) That the questions of gross negligence, contributory negligence, proximate cause and assumption of risk are questions of fact for the jury, unless the evidence is such that reasonable minds can draw but one conclusion therefrom, when it becomes a question of law for the court. Erdahl v. Hegg, N.D., 98 N.W.2d 217; Cose v. Towner County, N.D., 102 N.W.2d 538; King v. Railway Express Agency, N.D., 107 N.W.2d 509; Bauer v. Kruger, N.D., 114 N.W.2d 553; Borstad v. La Roque, N.D., 98 N.W.2d 16.

(2) That where there is a sharp conflict in the evidence relating to any material issue of fact, the verdict of the jury will not be disturbed on appeal. Ostmo v. Tennyson, 70 N.D. 558, 296 N.W. 541; Dahl v. North American Creameries, Inc., N.D., 61 N.W.2d 916; Killmer v. Duchscherer, N.D., 72 N.W.2d 650; Stokes v. Dailey, N.D., 85 N.W.2d 745.

(3) That in determining the sufficiency of the evidence to sustain the verdict, the evidence must be viewed in the light most favorable to plaintiff. Smith v. Knutson, 78 N.D. 43, 47 N.W.2d 537; Doll v. Treiber, N.D., 76 N.W.2d 910; Vaux v. Hamilton, N.D., 103 N.W.2d 291.

(4) That the credibility of the witnesses and weight to be given to their testimony are questions of fact for the jury to determine. Klundt v. Pfeifle, 77 N.D. 132, 41 N.W.2d 416; Stokes v. Dailey, supra; Fisher v. Suko, N.D., 111 N.W.2d 360.

(5) That in considering a specification that the verdict of the jury is contrary to the evidence, the court will assume the truth of the version of the evidence which tends to support the verdict. Froh v. Hein, 76 N.D. 701, 39 N.W.2d 11; Lusty v. Ostlie, N.D., 71 N.W.2d 753.

Bearing these rules in mind, we find that the only substantial dispute in the evidence relates to the manner in which the collision occurred.

The record shows that on the 22nd day of May, 1962, William J. Werre resided with his family in the city of Napoleon; that he was the owner of a 1957 Chevrolet sedan which he kept...

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