Keyes v. Amundson, 11093

• Decision Date: 16 July 1986
• Docket Number: No. 11093,11093
• Citation: 391 N.W.2d 602
• Court: North Dakota Supreme Court
• Parties: Bradley KEYES, Plaintiff and Appellee, v. Susan AMUNDSON, Defendant and Appellant, Robert Amundson and Getter Trucking, Inc., Defendants, Craig Stoner and G & J Hotshot Service, Inc., Defendants and Appellants. Civ.

Page 602

391 N.W.2d 602

Bradley KEYES, Plaintiff and Appellee, v. Susan AMUNDSON, Defendant and Appellant Robert Amundson and Getter Trucking, Inc., Defendants Craig Stoner and G & J Hotshot Service, Inc., Defendants and Appellants.

Civ. No. 11093.

Supreme Court of North Dakota.

July 16, 1986.

Greenwood, Greenwood & Greenwood, Dickinson, for plaintiff and appellee; argued by Dann E. Greenwood.

Bjella, Neff, Rathert, Wahl & Eiken, Williston, for defendant and appellant Susan Amundson; argued by Paul W. Jacobson.

McIntee & Whisenand, Williston, for defendant Getter Trucking, Inc.

Letnes, Marshall, Fiedler & Clapp, Ltd., Grand Forks, for defendants and appellants Craig Stoner and G & J Hotshot Service, Inc.; argued by Jay H. Fiedler.

ERICKSTAD, Chief Justice.

Susan Amundson, Craig Stoner, and G & J Hotshot Service, Inc. (hereinafter collectively referred to as appellants unless the context requires otherwise) appeal from an amended judgment entered upon a jury verdict, an order denying their motion for judgment notwithstanding the verdict, and an order denying their motion for a new trial. We reverse and remand for a new trial.

This action arose out of a motorcycle-automobile accident which occurred on August 4, 1981, in Williston, North Dakota. Bradley Keyes was riding his motorcycle west on 26th Street when Amundson pulled out from a stop sign into the path of his oncoming motorcycle. Amundson and Keyes' vision was allegedly obstructed by a semi-trailer truck which had been parked by Stoner on 26th Street near the intersection. Keyes alleged that Stoner was acting as an agent for Getter Trucking, Inc. (Getter) and G & J at the time of the accident.

Keyes was seriously injured in the accident and commenced the instant action to recover damages. The case was tried to a jury, and it returned a verdict apportioning negligence in the following amounts: Keyes--40%; Amundson--40%; and Stoner--20%. The trial court concluded that Keyes was not entitled to recover damages under our comparative negligence statute, Section 9-10-07, N.D.C.C., and his action was dismissed.

In Keyes v. Amundson, 343 N.W.2d 78 (N.D.1983), we concluded that jury misconduct caused extraneous prejudicial information to reach the jury and there was a reasonable possibility that the information could have affected the verdict of a hypothetical average jury. Accordingly, we reversed and remanded for a new trial.

The case was again tried to a jury, and it returned a verdict apportioning negligence in the following amounts: Keyes--10%; Amundson--15%; and Stoner--75%. Additionally, the jury determined that Keyes could have avoided one percent of his injuries by using a helmet or other protective clothing, and it found Keyes' damages, without diminution for his own negligence, to be $500,000. Each defendant moved for a judgment notwithstanding the verdict, or, in the alternative, for a new trial. The trial court denied the defendants' motions for judgment notwithstanding the verdict and for a new trial and granted Getter Trucking's motion for a new trial on the limited issue of agency. Shortly thereafter, the defendants discovered a previously unknown eyewitness to the accident, and they moved for a new trial on the basis of newly discovered evidence. The trial court denied their motion, and they appealed. ¹

The appellants contend that the trial court abused its discretion in denying their motion for a new trial on the basis of newly discovered evidence pursuant to Rule 59(b)(4), N.D.R.Civ.P. After the second trial, the appellants discovered an eyewitness to the accident, Wayne Beard, whose existence was previously unknown to them. In an affidavit in support of the motion for a new trial, Beard states that, at the time of the accident, he was riding a bicycle east on 26th Street about 150 feet to the west of the intersection where the accident occurred; that he was familiar with the operation of motorcycles; that he heard the noise of the motorcycle winding up or accelerating for approximately three seconds; that he saw the motorcycle approaching the intersection and saw the collision; that he observed the motorcycle for a sufficient time to accurately estimate its speed; and that he believed the motorcycle was traveling 40 to 45 miles per hour.

Rule 59(b)(4), N.D.R.Civ.P., provides:

"(b) Causes for New Trial. The former verdict or other decision may be vacated and a new trial granted on the application of a party aggrieved for any of the following causes materially affecting the substantial rights of the party:

* * *

* * *

"4. Newly discovered evidence material to the party making the application, which he could not with reasonable diligence have discovered and produced at the trial; ..."

A motion for a new trial on the basis of newly discovered evidence is addressed to the discretion of the trial court and will not be overturned on appeal absent an abuse of discretion. Farmers Elevator Co. of Horace v. Nagel, 307 N.W.2d 580 (N.D.1981). Whether the trial court's discretion was properly exercised depends upon the facts and circumstances of each case. Peterson v. Bober, 79 N.D. 300, 56 N.W.2d 331 (1952). ²

The following requirements must be met before a new trial will be granted on the basis of newly discovered evidence: (1) the evidence must have been discovered following trial, Erdahl v. Hegg, 110 N.W.2d 355 (N.D.1961); (2) the movant must have exercised due diligence in discovering the evidence, Hefty v. Aldrich, 220 N.W.2d 840 (N.D.1974); (3) the evidence must not be merely cumulative or impeaching, Webster v. Ek, 62 N.D. 44, 241 N.W. 503 (1932); (4) the evidence must be material and admissible, Farmers Elevator Co. of Horace v. Nagel, supra; and (5) the evidence must be such that a new trial would probably produce a different result, Peterson v. Bober, supra.

In the instant case, the trial court made the following findings:

"I.

"That the prooffered [sic] evidence was newly discovered after the second trial herein.

"II.

"That the Defendants exercised reasonable diligence in attempting to locate evidence of this type.

"III.

"That the newly discovered evidence is neither merely cummulative [sic] nor impeaching.

"IV.

"That the newly discovered evidence is material.

"V.

"That the Court cannot, and does not, find that the newly discovered evidence is of such a character that it is probable that a new trial would produce a new result based thereon."

In Peterson v. Bober, supra, 56 N.W.2d at 337-38, we said:

"... whether [motions for a new trial upon the ground of newly discovered evidence] should be granted or refused involves the inquiry whether substantial justice has been done; the court having in view solely the attainment of that end.... The discretion to be exercised is legal, and not arbitrary....

"Our statute provides that the: 'Newly discovered evidence [must be] material to the party making the application'. 28-1902, Subsec. 4, NDRC 1943. On that it is said in Aylmer v. Adams, supra, that: 'In determining the materiality and sufficiency of the evidence it is frequently suggested that such evidence must be of such character that it will probably change the result upon a retrial. The reason for this is obvious. A new trial should not be granted as a mere empty ceremony. Hence necessarily a trial court, before granting a new trial, should be satisfied that the former verdict was unjust, and that the newly discovered evidence, when weighed with the evidence received at the trial, will probably result in a different verdict upon the retrial. * * * The presumption is that the verdict of a jury is right, but if the unsuccessful party discovers after trial new evidence, which he could not with reasonable diligence have discovered and produced at the trial, of such character as to convince the court that an injustice has been done, and that a new trial probably will change the result, then a new trial should be granted.'

" 'To constitute sufficient ground for a new trial, newly discovered evidence must not only be relevant and material to the principal issues in the case, but must be sufficiently strong to make it probable that a different result would be obtained in another trial. * * * A dispute as to whether the new evidence has this probative effect is to be determined primarily by the trial court in its discretion. Nor will a reversal be ordered unless an abuse of discretion is disclosed.' " [Citations omitted.]

In the instant case, a critical issue at trial was the speed Keyes was traveling at the time of the accident. The posted speed limit on 26th Street was 30 miles per hour. Keyes testified that he had no recollection of the events immediately preceding the accident other than that his speed was 25 to 30 miles per hour after he turned onto 26th Street several blocks before the accident. Amundson testified that Keyes' motorcycle was right next to the front of the truck when she first saw it, and she described the impact as "large jolt." However, she was not able to testify to the motorcycle's speed. Amundson and Keyes were the only witnesses to the accident who testified at trial, and the other evidence presented to the jury concerning the speed of Keyes' motorcycle came from experts who reconstructed the accident.

Keyes' accident reconstruction expert, Phillip Hight, opined that the speed of Keyes' motorcycle at the time of the accident was 27 to 33 miles per hour. Hight's opinion was based on a momentum analysis using Amundson's cornering speed and normal cornering speed; an evaluation of the damage to the vehicles; a correlation of the injuries suffered by the parties; and a momentum vector analysis. The appellants' accident reconstruction expert, William Otto, opined that Keyes was operating his motorcycle at approximately 45 miles per hour at the time of the accident. Otto's opinion was based in part upon a crash test. On rebuttal, Keyes recalled Hight and also called Harry Peterson to refute...