Kohlman v. Hyland

• Decision Date: 12 May 1928
• Docket Number: No. 5462.,5462.
• Citation: 219 N.W. 228,56 N.D. 772
• Parties: KOHLMAN v. HYLAND.
• Court: North Dakota Supreme Court

56 N.D. 772

219 N.W. 228

KOHLMAN

v.HYLAND.

No. 5462.

Supreme Court of North Dakota.

March 21, 1928.

Rehearing Denied May 12, 1928.

Syllabus by the Court.

In an appellate court, orders granting new trials stand upon a firmer foundation than orders denying new trials.

A motion for a new trial on the ground of the insufficiency of the evidence to support the verdict invokes the discretion of the trial court, but the discretion is a legal discretion, to be exercised in the interest of justice, and, where the motion is granted, it must appear that the alleged cause or ground had an actual existence.

The test as to whether a decision is within the discretion of a court is whether or not the question may properly be decided either way.

In the instant case, the evidence is examined, and it is found to show indisputably that the conveyance in which the plaintiff was riding at the time of the collision with the defendant's automobile was being driven upon the extreme right side of the graded highway, that the defendant's car was pursuing a zigzag course, carrying it to the same side of the highway, and that the collision occurred through the failure of the driver to observe the law of the road. Since the facts from which the inference of negligent driving may be drawn do not rest upon conflicting evidence, and since the inference is one that is clearly warranted, the court, in ruling upon the motion for a new trial, was not exercising a discretionary power, and it was error to grant the motion.

Burke, J., dissenting.

Appeal from District Court, Cass County; C. W. Buttz, Judge.

Action by Johnnie Kohlman, by L. J. Kohlman, his guardian ad litem, against M. S. Hyland. Judgment for plaintiff. From an order granting defendant's motion for a new trial, plaintiff appeals. Reversed.P. M. Paulsen, of Fargo, for appellant.

Francis Murphy, of Fargo, for respondent.

BIRDZELL, J.

This is an action to recover damages alleged to have been sustained by the plaintiff in a collision with an automobile owned by the defendant. The case has been twice tried. After the first trial there was an appeal to this court, and a new trial was awarded. Upon the second trial the plaintiff had a verdict for $2,200, upon which judgment was entered. Thereafter the trial court granted the defendant's motion for a new trial, and the instant appeal is from that order. The essential facts developed upon the trial do not differ materially from those before this court upon the former appeal. The following statement, taken from the former opinion (Kohlman v. Hyland, 54 N. D. 710, 210 N. W. 643, 50 A. L. R. 1437), presents the general situation:

“The plaintiff, a boy of 13, was, on July 21, 1923, injured in a collision with an automobile belonging to the defendant. The accident occurred near the city of New Rockford, this state. The defendant is an electrical contractor, engaged in the business of building and repairing telephone lines. At the time of the accident, one Ludwig was employed as foreman by the defendant, and, on the morning of July 21, left Hillsboro in a runabout en route to McKenzie county, to build some telephone lines for his employer. He was accompanied by one Sinner, also an employee of the defendant, and the defendant's son, Benny. They carried a box of tools, etc., in the car, to be used in connection with the proposed work. The defendant instructed Ludwig, before the latter left Hillsboro, to proceed to McKenzie county by way of Mayville, Finley, Cooperstown, and Carrington, and directed him to remain in Carrington over night. He followed the prescribed route as far as Finley, where he departed therefrom at the request of Sinner and proceeded to the city of McVille, in a northwesterly direction. They remained at McVille about one hour, and then left for Carrington by way of New Rockford. The Kohlmans lived east of New Rockford, and, at the time of the accident, were driving in an easterly direction on the so-called Tiffany highway. About a mile east of New Rockford, they were struck by the car driven by Ludwig. The car was going west, towards New Rockford, en route to Carrington. As a result of the collision, plaintiff was injured.”

The collision occurred within about 18 miles of their original destination of Carrington at a point more than 60 miles west of the point of original detour. While the defendant's servants, then, had deviated from the route they were instructed to take and had never returned to it, they had nevertheless almost completed the journey to the original destination before the collision occurred. There is testimony in this record to the effect that the defendant contemplated meeting his employees at Carrington on the following morning, and that it was planned to go from Carrington to Fessenden to do some work before proceeding on to McKenzie county. The law of this case with reference to deviation was established on the former appeal and needs no further consideration here.

In granting the motion for a new trial, the learned trial judge in his memorandum opinion said:

“The first trial had to do very largely with the question of whether or not the servant was on his master's business at the time the accident occurred. This was the first matter and chief matter before the district court on a motion for a directed verdict. This was the matter before the Supreme Court on the appeal. It was the thing which was outstanding in the minds of counsel on both sides at the trial before me, and I must confess that it was the outstanding proposition in my mind at the time of trial. The result was that on the second trial every one was thinking along those same lines, and that was the particular thing stressed, and perhaps all of us to a greater or less extent overlooked the really great question in the case, namely, that of negligence, and the great fact that whether or not the servant was acting in the course of his employment made no difference provided that servant was not negligent and that his negligence did not bring about the plaintiff's injuries. The more I think the matter over, the more impressed I am with the lack of negligence in this case, and on a consideration of the whole case I conclude that the defendant has not had a fair trial, and that there ought to be a further examination of this matter, particularly upon the question of negligence, and that possibly further evidence be adduced on this subject, and that there be presented more of detail the road conditions and the surrounding situation at the time of the accident and immediately before.”

The court had already discussed the subjects of speed, of lights, and of the position in the roadway, commenting on the unsatisfactory character of the evidence to establish the negligence alleged with respect to these matters. It is necessary to consider here the state of the evidence with regard to each of the allegations of negligence, which were separately considered by the trial court, resulting in the conclusion that the evidence was so unsatisfactory in this respect as to warrant the granting of a new trial.

The plaintiff made no attempt to prove the speed at which the car was traveling. All the testimony in the record on his behalf, with reference to speed, is contained in the following leading questions and answers, which were not objected to:

“Q. Did you notice whether this car was going fast or otherwise? A. Yes; it was going fast. * * *

Q. Well, did it look to you like it was going fast? A. Yes, sir.

Q. Now did you notice anything about the car, anything else about the car as it was coming toward you? A. Well, he was coming from the east you know, and he looks to me as though he was coming from one side to the other, so I tried to get my horse out of the way.”

With reference to lights, the evidence for the plaintiff is that the defendant had poor lights, but nevertheless the plaintiff's father, who was driving the horse, testified that he saw the automobile from a half to a quarter of a mile away as it approached.

The two chief witnesses for the defendant, the adults, Ludwig and Sinner, who were in the car (the third occupant of the car, Benny Hyland, was asleep when the collision occurred), testified that they did not see the plaintiff's rig until they ran into it and until the left buggy wheel was on the left fender of the car. There is additional evidence for the defendant to the effect that the car was equipped with lights of the same character as other cars of the same make, that they were in good condition, and that those in the car could see ahead five or six rods.

Concerning the position on the highway, the plaintiff's father testified that he drove out to the right as far as he could to give the approaching car the whole road; that the wheels on the right side of the buggy were in the ditch. This is corroborated by the testimony of other witnesses as to the location of the wheel track of the left front buggy wheel. The witness Sinner, testifying for the defendant, said: That the night was very dark. That they were driving about 15 or 18 miles an hour. That they did not see the rig in which the plaintiff was riding at all. That his recollection was that they “were to the center of the road.” That after the accident he was the only one there (Ludwig, the driver, having sustained a broken leg). It seemed to him that there was plenty of room for the buggy to have driven by. He did not think of the distance at that particular time. A buggy is 3 feet 8 inches wide. The driver would possibly have had to put one wheel in the ditch, but there was plenty of room. The ditch was not deep. He saw after the accident that they “were in the center of the road.” The testimony otherwise shows that the graded surface of the road was approximately 20 feet wide; that there was a shallow ditch on each side of the graded portion which formed a perpendicular wall from one to two feet high at the extreme outer edge of the ditch next to the field. After the...