Hoffman v. Berger

• Decision Date: 19 April 1956
• Docket Number: No. 7516,7516
• Citation: 76 N.W.2d 515
• Parties: Norman H. HOFFMAN, Plaintiff and Appellant, v. John R. BERGER, Defendant and Respondent.
• Court: North Dakota Supreme Court

Page 515

76 N.W.2d 515

Norman H. HOFFMAN, Plaintiff and Appellant, v. John R. BERGER, Defendant and Respondent.

No. 7516.

Supreme Court of North Dakota.

April 19, 1956.

Syllabus by the Court.

1. A motion for a new trial on the ground of the insufficiency of the evidence is addressed to the sound judicial discretion of the trial court and the granting of such a motion will not be disturbed on appeal except for a manifest abuse of discretion.

2. In considering a motion for a new trial, upon the ground of the insufficiency of the evidence, the trial court is not limited to a consideration of whether the verdict is supported by substantial evidence but may within reasonable limits consider its weight and credibility.

3. The evidence in this case was such that it was not an abuse of discretion for the trial court to grant a new trial.

Lord, Ulmer & Murphy, Mandan, for appellant.

Cox, Pearce & Engebretson, Bismarck, for respondent.

BURKE, Chief Justice.

In this action plaintiff sought to recover damages for injuries he sustained when an automobile driven by defendant collided with the automobile plaintiff was driving. Plaintiff alleged that collision and resulting injuries were proximately caused by defendant's negligence in driving at an excessive rate of speed, in failing to keep a proper lookout and in driving with his vision obscured by a sign painted on the windshield of his car. In his answer the defendant denied any negligence on his part, and alleged that plaintiff failed to yield the right of way at the intersection where the collision occurred and that plaintiff's negligence contributed proximately to cause his injuries. A trial of the case before a jury resulted in a verdict and judgment for the plaintiff. Defendant moved for judgment notwithstanding the verdict or in the alternative for a new trial. Judgment notwithstanding the verdict was denied but a new trial was granted. The plaintiff has appealed from the order awarding the new trial. A new trial was granted on the ground that the evidence was insufficient.

The collision occurred at the intersection of 2nd Ave. N.E. and 1st St. N.E. in the City of Mandan. Immediately prior to the accident plaintiff was proceeding in a northerly direction on 2nd Ave. and defendant was proceeding west on 1st St. The time was between 5:30 and 6:00 o'clock p. m. on July 28th. The day was clear and the pavement was dry. Each of the streets from curb to curb is 26 ft. 8 in. wide. There were no traffic signs at the intersection. The collision took place in the northeast quarter of the intersection. At the time of its occurrence, the front end of plaintiff's car was about on a line with the north side of 1st St. Defendant's car was in its proper traffic lane and its front end was about six to eight feet within the intersection. The front end of defendant's car struck plaintiff's car just in front of its right rear wheel. After the collision plaintiff's car came to rest on its left side on the berm in the northwest corner of the intersection. It was headed in an easterly direction. It had rolled on its side when its left rear wheel struck the street curbing on the corner. Defendant's car came to rest in the street near plaintiff's car. It was headed in a northerly direction. Defendant's car left skid marks on the pavement which extended 24 feet back from the point of the collision. Plaintiff's car left no skid marks. Defendant's car at the time of the accident had a large 'For Sale' sign painted on its windshield. The sign extended across the windshield from left to right and from top to bottom and the lines which formed the letters were about an inch wide. The facts as related so far as undisputed. There were no eye witnesses to the collision other than the parties and their testimony as to their own behavior and the acts of the other party prior to and up to the time of the accident is contradictory and completely irreconcilable.

According to plaintiff's version he saw the defendant's car for the first time when he was at a point 10 or 15 feet south of the intersection. At that time defendant's car was about 150 feet east of the intersection. He looked again to the right as he was entering the intersection and at that time defendant's car was 75 to 80 feet to the east. He proceeded without looking to the east again and the rear end of his car was struck at about the time its front end had reached the north line of the intersection. He was...