Hoffer v. Burd, 7236

• Decision Date: 24 March 1951
• Docket Number: No. 7236,7236
• Citation: 78 N.D. 278,49 N.W.2d 282
• Parties: HOFFER v. BURD et al.
• Court: North Dakota Supreme Court

Page 282

49 N.W.2d 282

78 N.D. 278

HOFFER v. BURD et al.

No. 7236.

Supreme Court of North Dakota.

March 24, 1951.

On Rehearing Sept. 18, 1951.

Syllabus by the Court.

1. 'Where a witness gives the results of what he saw, his testimony is not objectionable on the ground that it is a conclusion rather than a statement of facts.' Seckerson v. Sinclair, 24 N.D. 625, 140 N.W. 239.

2. The instantaneous conclusions of the mind as to the appearance, and physical condition of a person, derived from observation of a variety of facts presented to the witnesses at one and the same time and impossible of detailed description, are, legally speaking matters of fact and are admissible in evidence.

3. Several objections to the introduction of testimony examined and it is held that the court's rulings thereon were not prejudicial and that the motions to strike such testimony were properly denied.

4. When the evidence concerning the question of whether or not an employee was in the course of his employment at the time of an accident is such that reasonable minds could draw but one conclusion therefrom then it becomes a matter of law for the court to pass upon. If, however, reasonable minds could draw different conclusions from the evidence then it is a matter of fact for the jury to decide.

5. For reasons stated in the opinion it is held that the question of whether the defendant Burd was within the course of his employment by the defendant, Valley Service, Inc. a corporation, at the time of the collision was properly submitted to the jury.

6. The declaration by the trial court of a mistrial is an extreme remedy to be resorted to only when there is a fundamental defect in the proceedings of a trial or when something has happened during the course of the trial which makes it evident that further proceedings therein would be productive of manifest injustice. In the instant case the motion for a mistrial was properly denied.

7. An appellant who has requested an instruction given by the trial court is estopped from urging error thereon on the ground that it is not sufficiently specific or complete.

8. Instructions of the court are examined and it is held that considered as a whole they fairly state the law applicable under the evidence in the case.

Lanier & Lanier, Fargo, for appellant Burd.

Conmy & Conmy, Fargo, for appellant Valley Service, Inc.

Nilles, Oehlert & Nilles, Fargo, for plaintiff and respondent.

GRIMSON, Justice.

This is an action for damages arising out of an automobile collision. The plaintiff claims that on the 16th day of July 1949, he was driving his Dodge automobile in a westerly direction on Highway No. 10 approximately 25 miles west of Fargo in a careful and cautious manner on the right hand side of the highway. That at such time and place the defendant was driving his Chevrolet automobile in an easterly direction. That defendant was employed by the Valley Service, Inc., a corporation, (hereinafter referred to as Valley Service) which sold electric appliances and did plumbing, wiring and electrical work, and was returning to Fargo in the due course of his employment. That he drove his car is a reckless and negligent manner on the wrong side of the road and collided with plaintiff's car causing damage and physical injuries for which he seeks to recover.

The defendant, Henry W. Burd, admits the collision and that he was at the time acting as agent or employee of the Valley Service, but denies any negligence on his part and alleges that the collision was due to the negligent and reckless manner of driving by the plaintiff and counterclaims for his injuries and damages.

The defendant, Valley Service, makes a general denial and specifically denies that the defendant, Burd, was at the time and place of the accident acting as an agent or employee of Valley Service, and further denies that the accident and injury were caused by his negligence but allege that they were caused by plaintiff's contributory negligence.

The case was tried to a jury who found in favor of the plaintiff and against both defendants. From the judgment entered on its verdict both defendants appeal.

The evidence shows that this accident happened about 2:30 P.M. on Saturday, July 16, 1949 on a slight elevation on a straight, paved highway. The weather was clear and the visibility good. The plaintiff was an orderly in a hospital in Minneapolis and had driven from there that morning. The defendant, Burd, was a salesman for the defendant, Valley Service, and had been taking orders in the vicinity of Marion and Eckelson, North Dakota, during the latter part of the week. He worked on both a salary and commission and was paid mileage for the use of his car. On Friday night he stayed with his mother at Valley City and visited around Valley City Saturday forenoon. After lunch he started his return to Fargo on the same route he had used when he went out to his work. He carried with him some orders that he had taken during the week and had in the car advertising material and pictures of the company products. On this slight elevation on the highway, about a mile and a half west of Wheatland, about 25 miles west of Fargo, he passed a truck and shortly thereafter the collision occurred.

The evidence shows that the front of plaintiff's car was badly crushed. The right front of the defendant's car, including the fender and wheel, were badly smashed. After the collision plaintiff's car was lying on its left side facing southwest, across the south half of the highway. The defendant's car was upright, facing southeast with the rear end 'on the north side of the road.' Both vehicles were on the paved portion of the highway. The debris, broken glass and radiator fluid were on the south lane of the paving. The tracks from the Burd car led into the north lane of the highway.

Mr. Pfau, the driver of the truck which the defendant had passed, and who saw the collision, testified that he watched the defendant, 'edging over until he was about entirely in the north lane' where Pfau claims the collision happened. He testified that just before the accident plaintiff's car swung a little to the left.

Plaintiff testified that he saw the defendant's car coming on the north side of the highway, 'The driver was sitting with his head down.' That before the accident happened, 'he turned his wheel as far as he could to the right and hit my front end.'

Defendant's testimony was that he did not remember passing the truck but as he was driving down the road he saw a car which 'seemed to be right in the middle of the road. I just took it for granted that it would get back on its own right half of the road before it got too close to me and as I was driving along and he was coming at me and he got close enough so I was afraid he was not going to turn to his right half of the road I glanced at the ditch. There was a culvert there and I couldn't very well take to the ditch, and when I straightened my head up to see how close he was it happened that quick.' He claims that he was on his right side, the south side, of the highway. He was rendered unconscious by the crash.

Of the 22 specifications of error filed, 13 concerned the admission of evidence. The remaining assignments are addressed to the denial of motions to strike testimony and to direct a dismissal as to Valley Service, to the argument of counsel and to the instructions of the court.

The first series of those specifications relate to the testimony given by two highway patrolmen who arrived on the scene of the accident about an hour after it happened.

Objection was made to their testimony regarding the wheel tracks found at the scene of the accident. Harry Nathan, one of the patrolmen was asked: 'State whether or not you were able to observe the wheel marks from the Burd automobile * * * leading up to the scene of the accident or point of the accident?' And again, 'Tell the jury what course those marks took and whether or not they led up to the wheels of the Burd automobile?' That was objected to as 'no foundation laid and calling for a conclusion of the witness' and a motion was made to strike out the testimony on the same grounds. Similarly, the other patrolman, Charles Puntin, was asked: 'Did you observe whether those tire marks led up to the wheel of the Burd automobile?' Ans: 'I did.' Q.--'Did they?' Ans:--'Yes, they did.' Objection was made to the questions and a motion made to strike the answers on the ground that there was no foundation laid. At the conclusion of their testimony a motion was made to strike all of the testimony of those witnesses concerning the tracks as 'a conclusion of this witness, no foundation laid for it.'

Before these questions were asked Pfau had testified as to the location of the cars where they came to rest after the accident. He stayed there until after the patrolmen came. There was no testimony that they had been moved in the meantime and the description of their location as given by both Nathan and Puntin prior to this testimony coincides with what Pfau had testified. Clearly there was sufficient evidence for the jury to find that they had not been moved. The Burd car was standing on its wheels and the testimony of the patrolmen is that they had traced the tracks back from the wheels of the Burd automobile. They testified to what they had observed. That was a statement of fact. If there was any conclusion mixed in that fact it was only such as always is involved in testimony describing observations. In Wilson v. Northern Pacific Railway Co., 30 N.D. 456, 487, 153 N.W. 429, 439, L.R.A.1915E, 991, this court says: 'Every result of the use of the eyesight is as a matter of last analysis a deduction or conclusion. If judgments were reversed for answers such as the one before us, none of them would stand.' In the case of Seckerson v. Sinclair, 24 N.D. 625, 628, 140 N.W. 239, 241, this court says: 'Nor did the court err in refusing to strike out the answer of the...