King v. Railway Exp. Agency, Inc.

• Decision Date: 06 February 1961
• Docket Number: No. 7900,7900
• Citation: 107 N.W.2d 509
• Parties: John W. KING, Individually and as Trustee for the North Dakota Workmen's Compensation Bureau, Plaintiff and Respondent, v. RAILWAY EXPRESS AGENCY, INC., a Foreign Corporation; and H. E. Discher, Defendants and Appellants.
• Court: North Dakota Supreme Court

Page 509

107 N.W.2d 509

John W. KING, Individually and as Trustee for the North Dakota Workmen's Compensation Bureau, Plaintiff and Respondent, v. RAILWAY EXPRESS AGENCY, INC., a Foreign Corporation; and H E. Discher, Defendants and Appellants.

No. 7900.

Supreme Court of North Dakota.

Feb. 6, 1961.

Syllabus by the Court

1. Questions of negligence and contributory negligence ordinarily are questions

of fact for the jury unless the evidence is such that reasonable men can draw but one conclusion therefrom.

2. Refusal to give requested instructions is not error where the instructions as given fully and fairly cover issues referred to in the requested instructions.

3. A driver's duty is not limited to seeing what is in plain sight on the street. He has a duty to see any object that is in plain sight within the ordinary range of his vision, as he is driving down the street, if a reasonably prudent man, in the exercise of ordinary care, under similar circumstances, would have seen such subject.

4. Counsel has great latitude in presenting his argument to the jury, subject to regulation and control of the trial court whose duty it is to confine the arguments within proper limits.

5. It is permissible for counsel in his argument to the jury in a personal injury suit to use and display a sheet of paper or other medium upon which is written the hospital bills, doctor bills, ambulance bills, loss of wages, or any other items which have been admitted in evidence by the court.

6. Counsel in argument to the jury may not make comments which amount to giving independent testimony of his own.

7. Arguments of counsel must be confined to facts in the evidence or to what may properly be inferred from the evidence.

8. Use of a mathematical formula setting forth the plaintiff's claim for pain and suffering, on a per-diem, per-week, or per-year basis, where there is no testimony to substantiate the figures used, is mere speculation by plaintiff's counsel, not supported by the evidence, and therefore is improper.

9. A mathematical formula based on a per-diem, per-week, per-month, or per-year basis for computing pain and suffering, if not based on any evidence in the record or on logical inferences from such evidence, is pure speculation by counsel, and it is error for the trial court to permit plaintiff's counsel to present to the jury such mathematical formula setting forth, on a per-diem, per-week, per-month, or per-year basis, the amount which plaintiff's counsel has decided would be proper for pain and suffering.

10. A mathematical formula showing plaintiff's demand for pain and suffering of $100 per week for the first 16 weeks and $300 per year for the next 37 years is based on speculation of plaintiff's counsel and is not based on any evidence in the record, and permitting the use of such formula is error.

Lanier, Lanier & Knox, Fargo, for plaintiff and respondent.

Conmy, Conmy & Feste, Fargo, for defendants and appellants.

STRUTZ, Judge.

The plaintiff, an employee of Dakota Electric Company of Fargo, was in charge of work involved in making certain changes in the street wiring system in the city of Fargo, including the removal of the street lighting heads from old poles and attaching them to new poles. The accident resulting in the bringing of this action occurred when such wiring changes were made at the intersection of Second Avenue, North, and Broadway.

This case previously was before this court. King v. Railway Express Agency, Inc., N.D., 94 N.W.2d 657. The jury, on the first trial of the action, returned a verdict for the defendants, dismissing the plaintiff's action. During its deliberations, without the knowledge or consent of either of the parties, the jury was permitted by the trial court to have a ruler and string for the purpose of attempting to reproduce the way in which the wires hung across the street at the time of the accident. The trial court, on motion by the plaintiff, granted a new trial which was affirmed by this court on appeal. This court held that the furnishing of a ruler and string to the jury without the knowledge and consent of any of the parties constituted prejudicial error, entitling the plaintiff to a new trial.

The evidence in this case shows that, prior to the making of changes in the wiring, the police of the city of Fargo had stopped traffic along Broadway and had cleared the street of all traffic. The evidence further shows that the plaintiff was aware of the fact that traffic was being controlled by the police, although he had not requested such assistance nor had he arranged for it. After the traffic had been halted by the police, the steel guy wire to which the electric wires were attached was cut and it fell to the street, carrying with it the electric wires. The guy wire and the electric wires then were separated, and the electric wires were again raised for the purpose of reattaching them to the new poles on either side of the street. Plaintiff then made a temporary fastening of the wires on the east side of Broadway and crossed the street and raised the wires to a position about 25 feet above the ground at the point of attachment to the pole on the west side of the street. After a permanent attachment was made of the wires on the west side, the wires crossing Broadway sagged to a height of from 7 to 10 feet above the middle of the street. Traffic then was permitted to resume along Broadway by the policeman who had been directing it.

As the plaintiff was descending the ladder placed against the pole on the west side of the street to which the wires had been permanently attached, he discovered that one of the wires was broken and stopped on the way down to splice it. While the plaintiff was so occupied, and after the patrolman on the street had permitted traffic to resume and, in fact, had departed from the scene of such repair and was about a block away, the defendant, driving a Railway Express Agency truck, proceeded across the intersection in a southerly direction. There was another policeman still at the scene, but he was not directing or in any way controlling traffic. When the defendant Dischar, driver of the express truck, proceeded across the intersection, the truck or its visor caught the cable of wires and pulled the plaintiff and the ladder on which he was standing into the street, severely injuring him.

The matter was submitted to a jury after the defendants' motion for directed verdict had been denied. Such motion was made on the ground that there was not sufficient proof of negligence on the part of the defendant Discher and on the further ground that the plaintiff was guilty of contributory negligence. The jury returned a verdict for the plaintiff, and judgment was entered on such verdict. This appeal is taken from the judgment so entered.

The defendants contend:

1. That there is no evidence of actionable negligence on the part of the defendant Discher, and that the verdict therefore cannot stand; and

2. That under the evidence the plaintiff was guilty of contributory negligence as a matter of law.

This court repeatedly has held that questions of negligence and contributory negligence ordinarily are questions of fact for the jury unless the evidence is such that reasonable men can draw but one conclusion therefrom. Armstrong v. McDonald, 72 N.D. 28, 4 N.W.2d 191; Leonard v. North Dakota Co-op. Wool Marketing Ass'n, 72 N.D. 310, 6 N.W.2d 576; Fagerlund v. Jensen, 74 N.D. 766, 24 N.W.2d 816; Froh v. Hein, 76 N.D. 701, 39 N.W.2d 11; Huus v. Ringo, 76 N.D. 763, 39 N.W.2d 505; Reservation Motor Corp. v. Mayer, 77 N.D. 431, 43 N.W.2d 537; Olson v. Kem Temple Ancient Arabic Order of Mystic Shrine, 78 N.D. 263, 49 N.W.2d 99; Rettler v. Ebreck, N.D., 71 N.W.2d 759; Pundt v. Huether, N.D., 100 N.W.2d 431.

On the former appeal of this case, this court said:

'Upon the law and the evidence in this case we are satisfied that the issues of negligence, proximate cause and contributory negligence were for the jury.' 94 N.W.2d 657, at page 659.

Therefore, unless the defendants can point to additional evidence in the case which would distinguish the evidence in this case from that taken at the former trial, the rule laid down on the former appeal must be adhered to. The mere fact that the members of this court, if they had been called upon to pass on the evidence originally, might have reached a different result from that reached by the jury does not mean that reasonable men might not differ on the question of whether, under the evidence, the defendant Discher was guilty of negligence.

On the question of the negligence of the defendant Discher in operating his vehicle, we find no substantial change in the testimony at this trial from that which was given in the previous trial. The evidence shows that the bundle of wires, as they sagged across the street, together formed a 'cable' of about an inch to an inch and a half in diameter. This bundle of wires was not hanging out of the defendant Discher's range of vision, as has been strenously argued by the defendants, but, by plaintiff's undisputed testimony, sagged down to a point from 7 to 10 feet above the pavement. The defendant Discher, as he was driving his truck, was sitting with his eyes approximately 5 feet above the level of the street. Whether a reasonably prudent man would have seen the wires as they hung across the street, under similar circumstances, was a question for the jury. From this state of facts, reasonable men might differ as to whether the defendant Discher was negligent in failing to see the wires under those circumstances. The question of negligence of the defendant therefore was a question for the jury.

We also fail to find any substantial change in the evidence produced on the second trial on the question of contributory negligence of the plaintiff. It is true that the plaintiff testified, on cross-examination, that the wires across the street, after having been permanently...