Holten v. Amsden

• Decision Date: 03 July 1968
• Docket Number: Nos. 8483--8485,s. 8483--8485
• Citation: 161 N.W.2d 478
• Parties: Dale HOLTEN, by Harold Holten, Guardian ad Litem, Plaintiff and Respondent, v. Robert AMSDEN, Norman Hill, and Julian Wysocki, Defendants, and Julian Wysocki, Defendant and Appellant. Neva LONGTINE, by Grace Findring, her Next Friend and Guardian ad Litem, Plaintiff and Respondent, v. Robert AMSDEN, Norman Hill, and Julian Wysocki, Defendants, and Julian Wysocki, Defendant and Appellant. Sharon LILLICO, a Minor, by Viola Lillico, her Guardian ad Litem, Plaintiff and Respondent, v. Robert AMSDEN, Norman Hill, and Julian Wysocki, Defendants, and Julian Wysocki, Defendant and Appellant. Civ.
• Court: North Dakota Supreme Court

Page 478

161 N.W.2d 478

Dale HOLTEN, by Harold Holten, Guardian ad Litem, Plaintiff and Respondent, v. Robert AMSDEN, Norman Hill, and Julian Wysocki, Defendants, and Julian Wysocki, Defendant and Appellant.

Neva LONGTINE, by Grace Findring, her Next Friend and Guardian ad Litem, Plaintiff and Respondent, v. Robert AMSDEN, Norman Hill, and Julian Wysocki, Defendants, and Julian Wysocki, Defendant and Appellant.

Sharon LILLICO, a Minor, by Viola Lillico, her Guardian ad

Litem, Plaintiff and Respondent, v. Robert AMSDEN, Norman Hill, and Julian Wysocki, Defendants, and Julian Wysocki, Defendant and Appellant.

Civ. Nos. 8483--8485.

Supreme Court of North Dakota.

July 3, 1968.

Rehearing Denied Oct. 15, 1968.

Syllabus by the Court

1. In reviewing the sufficiency of the evidence on appeal from a judgment and from an order denying motion for judgment notwithstanding the verdict or for a new trial, the appellate court will view the evidence in the light most favorable to the verdict.

2. Where evidence in a negligence case is conflicting, the appellate court will not disturb the verdict of the jury or the order of the trial court denying motion for judgment notwithstanding the verdict or for a new trial, on grounds of insufficiency of the evidence.

3. Whether a photograph is admissible in evidence is largely within the judicial discretion of the trial court. The prime condition on admissibility is that the picture be identified as portraying certain facts relative to the issues in the case and verified by some witness on personal knowledge as a true representation of such facts.

4. Admission of evidence which is merely immaterial, and not prejudicial, is not reversible error.

5. Declaration of a mistrial should be resorted to only when there is a fundamental defect in the proceedings of a trial, or when something has happened during the trial which makes it apparent that further proceedings would be productive of manifest injustice.

6. Where counsel for the plaintiff asks an improper question, objection to which is sustained by the trial court, and where the trial court thereupon admonishes the jury to disregard any insinuations which might arise from such question, it was not error to deny the motion for mistrial.

7. The appellant cannot assign as error something which is not prejudicial to him. Any error not accompanied by prejudice is not ground for reversal.

8. A motion for new trial or for reduction of the verdict is addressed to the sound, judicial discretion of the trial court, and the trial court's determination of such motion will not be disturbed on appeal except in case of manifest abuse of such discretion.

9. Before this court will interfere with a verdict on appeal, on the ground that it is grossly in excess of the amount warranted, the award must be so excessive or so inadequate as to be without support in the evidence. In the cases before us, the awards are not so excessive as to indicate that the jury was influenced by passion or prejudice.

10. For reasons stated herein, the judgments and the orders appealed from are affirmed.

Dahl, Dahl & Greenagel, Grafton, for plaintiff and respondent, Dale Holten.

Grimson & O'Keefe, Grafton, for plaintiff and respondent, Neva Longtine.

DePuy, Fair & O'Connor, Grafton, for plaintiff and respondent, Sharon Lillico.

Letnes, Murray & Marshall, Grand Forks, for defendant and appellant, Julian Wysocki, in all cases.

STRUTZ, Justice.

Three separate actions against the same defendants and growing out of the same automobile accident were consolidated in the district court for the purpose of trial. The jury returned a verdict for the plaintiff and against the defendants Amsden and Wysocki in each of the three cases, and the complaints were dismissed as to defendant Hill. The defendant Wysocki thereupon moved for judgment notwithstanding the verdict or, in the alternative, for a new trial in each of the actions. The trial court denied such motion in each case, and the defendant Wysocki now appeals from the order denying his motion for judgment notwithstanding the verdict or, in the alternative, for a new trial, and from the judgment entered in each case. Certain assignments of error are specified, predicated upon the insufficiency of the evidence, rulings in the admission of evidence, and upon the court's instructions to the jury.

The record discloses that the defendant Amsden, seventeen years of age and a resident of Grafton, was the owner of a 1955 Ford sedan. On April 30, 1966, he planned to attend a dance in Minto, North Dakota. His date for the evening was the plaintiff Sharon Lillico, aged 15. After work, he had a person described in the record only as 'David' go to a local bar and purchase a fifth of sloe gin and a six-pack of beer for him. He then went home, cleaned up, ate his evening meal, and then went to pick up his date. Shortly after leaving Sharon's home, they met one Robert Swanson and invited him to go to the dance. On the way to Minto, while the parties were drinking, Sharon spilled some sloe gin on her dress and they returned to her home in Grafton so that she could change garments.

The dance was over at midnight, and four other young people, the plaintiffs Neva Longtine and Dale Holten and two others, requested rides back to Grafton with the defendant Amsden.

As the group left Minto in the defendant Amsden's automobile, it was being driven by Robert Swanson. In the front seat of the car, in addition to Swanson, were the plaintiffs Neva Longtine and Lillico and the defendant Amsden. After traveling a short distance, Amsden demanded that he be permitted to drive his own automobile, and Swanson thereupon pulled to the side of the road and the switch of drivers was made. The record discloses that when Amsden took the wheel, the plaintiff Lillico moved over next to the driver. Amsden thereupon put his right arm around her and drove with his left hand. He accelerated rapidly and, in less than a mile after Amsden took the wheel, his Ford automobile was traveling sixty-five to seventy miles per hour. At that point it approached a curve in the highway where the road changes directions from east-west to north-south. As his car entered this curve, Steve Rodgers, one of the persons in the back seat, estimated that they were traveling at sixty-five to seventy miles an hour. At that moment, Rodgers claims that he said to Amsden that he had better slow down or he would not make it. The plaintiff Holten, sitting directly behind the defendant Amsden, claims to have glanced at the speedometer just as the car was approaching the curve, and says that they were traveling at a speed of seventy miles an hour.

At the entrance to the curve, both from the east and from the north, there were signs posted stating that the speed limit in the curve was forty-five miles an hour.

The car driven by the defendant Wysocki was approaching this curve from the north. The record shows that the occupants of this vehicle had spent several hours at the Eagles Club in Grafton, where Wysocki had had four drinks of whiskey. He was driving at about forty-five miles an hour as he approached the curve and the scene of the accident. He claims that he was driving on his right side of the highway and that he determined this by watching the intermittent white line which marks the center of the highway at this point. The collision occurred at the north end of the curve, just as the defendant Wysocki was about to commence making the turn toward the east and just as the defendant Amsden was about to complete his turn to the north. The defendant Wysocki stated that he did not notice the oncoming car until it was coming around the curve and just before impact.

After the accident, the defendant Wysocki's automobile came to rest some forty feet from the place where most of the debris was found on the highway. The defendant Amsden's vehicle stopped on the highway about 200 feet to the north, facing east, and it was straddling both lanes of traffic. The plaintiffs Lillico and Longtine were found under the defendant Amsden's car. The plaintiff Holten lost an eye in the collision.

On this evidence, the jury returned substantial verdicts for each of the plaintiffs against the defendants Amsden and Wysocki. The defendant Wysocki has taken this appeal from the judgment and the order denying motion for judgment notwithstanding the verdict or, in the alternative, for a new trial in each case. The defendant Amsden has not appealed.

The first issue to be determined on these appeals is whether there is any competent evidence of negligence on the part of the defendant Wysocki which proximately caused or contributed to the injuries of the plaintiffs. For the purpose of this opinion, it will be conceded that the defendant Amsden was grossly negligent since the jury returned a verdict against him for the plaintiffs, who were guests in his car, and, since he has not appealed, there is no need for us to discuss the evidence of the defendant Amsden's negligence and we will confine our consideration to the sufficiency of the evidence to the defendant Wysocki's negligence.

In reviewing the sufficiency of the evidence on appeal from a judgment and from an order denying motion for judgment notwithstanding the verdict or for a new trial, the appellate court will review the evidence in the light most favorable to the verdict. Mikkelson v. Risovi (N.D.), 141 N.W.2d 150; Vaux v. Hamilton (N.D.), 103 N.W.2d 291; Lund v. Knoff (N.D.), 85 N.W.2d 676, 67 A.L.R.2d 1110; Leonard v. North Dakota Co-op. Wool Marketing Ass'n, 72 N.D. 310, 6 N.W.2d 576.

This court has often held that a verdict of the jury on conflicting evidence will not be disturbed on appeal, in the absence of legal error. Severinson v. Nerby (N.D.), 105 N.W.2d 252; Fox v. Bellon (N.D.), 136 N.W.2d 134; Jasper v. Freitag (N.D.), 145 N.W.2d 879; Moe v. Kettwig (N.D.), 68 N.W.2d 853; Clark v. Josephson (N.D.), 66 N.W.2d 539; Hochstetler v. Graber, ...