Koland v. Johnson

• Decision Date: 10 December 1968
• Docket Number: No. 8507,8507
• Citation: 163 N.W.2d 330
• Parties: Lorna Mae Christensen KOLAND, Plaintiff and Appellant, v. Clayton JOHNSON, Defendant and Respondent.
• Court: North Dakota Supreme Court

Page 330

163 N.W.2d 330

Lorna Mae Christensen KOLAND, Plaintiff and Appellant, v. Clayton JOHNSON, Defendant and Respondent.

No. 8507.

Supreme Court of North Dakota.

Dec. 10, 1968.

Syllabus by the Court

1. Questions of negligence, proximate cause, contributory negligence, and assumption of risk are ordinarily questions of fact for the jury; it is only when the evidence is such that reasonable men can draw but one conclusion therefrom that they become questions of law for the court.

2. Whether a motorist is confronted with an emergency and, assuming that he was confronted with an emergency, whether he acted negligently, are jury questions unless the evidence is such that reasonable men can draw but one conclusion therefrom.

3. In determining the sufficiency of the evidence to sustain the verdict, the evidence must be viewed in the light most favorable to the verdict.

4. The credibility of the witnesses and the weight to be given to their testimony are questions of fact for the jury to determine.

5. From the evidence in this case the jury could reasonably have concluded that the driver of the lead vehicle was confronted with an emergency, and that under the circumstances he exercised reasonable care; accordingly, we cannot say that reasonable men could have drawn only the opposite conclusions. For that reason we find no abuse of the trial court's discretion in denying the motion for new trial based on the contention that the evidence sustains only the conclusion that the driver of the lead vehicle was negligent and that his negligence was a proximate cause of the plaintiff's injuries.

6. From a review of the evidence in this case we are of the opinion that it is not such that reasonable men could have drawn but one conclusion as to the issue of contributory negligence.

7. The driver of a motor vehicle is under a statutory duty not to stop or suddenly decrease the speed of his vehicle without first giving an appropriate signal to the driver of any vehicle immediately to the rear when there is an opportunity to give such a signal. Giving a signal is not in itself such a statutory compliance; it must be an appropriate signal. In light of the evidence in this case we conclude that the trial court should have so instructed the jury, this being the essence of the requested instruction, and that in failing to give such an instruction, the trial court prejudiced the appellant so that she is entitled to a new trial.

8. Ordinarily, the question whether the driver of a leading vehicle was negligent or contributorily negligent in the manner in which he stopped or slowed down on the highway is a question of fact for the jury. Likewise, incidental questions pertinent to his negligence or exercise of care in stopping or slowing down, such as whether he was justified in stopping or slowing down, whether he made a sudden stop, whether he had a duty to give a warning of his intention to the driver of a following vehicle, and whether he gave a sufficient warning of his intention, are usually questions of fact for the jury.

Arnason & Pearson, Grand Forks, for appellant.

Pringle, Herigstad, Meschke, Loder, Mahoney & Purdy, Minot, for respondent.

ERICKSTAD, Judge.

Lorna Mae Christensen Koland commenced an action against Rodney G. McLachlan, Robert Webber, and Clayton Johnson by complaint dated July 27, 1966. The substance of her allegations follows:

At about 2:00 a.m. on July 28, 1962, she was a passenger seated in the right rear seat of an automobile owned by Robert Webber. The car was being driven by Rodney McLachlan with the permission and at the special instance of Robert Webber, although Mr. McLachlan was incapable of properly operating a motor vehicle because he was intoxicated and Mr. Webber knew this. Miss Christensen, as she was then, did not consent to Mr. McLachlan's operation of the car, but instead continuously protested to both the men about Mr. McLachlan's driving. At the time of the accident Mr. McLachlan was driving westward on a rural road between Newburg and Dunning in Bottineau County and was approximately 3 miles west of Newburg when he struck the rear of Clayton Johnson's automobile, which was parked on the south part of the roadway, headed west.

She alleged that the accident was a direct and proximate result of the intoxication and gross negligence of Rodney McLachlan, the gross negligence of Robert Webber, and the negligence of Clayton Johnson; and that as a direct and proximate result she was caused serious and permanent injury, pain and suffering, and medical and hospital expenses, for all of which she prayed judgment totalling in excess of $77,000.

As a result of a covenant not to sue and a stipulation of dismissal with prejudice entered into by Mrs. Koland and Mr. McLachlan and Mr. Webber, the case came on for jury trial in Bottineau on June 28, 1967, with Mr. Johnson the sole remaining defendant.

Mr. Johnson denied that he was negligent in the operation of his automobile and specifically denied that he had parked his automobile on the south side of the roadway. He further asserted that if Mrs. Koland had sustained any damages, they were caused or contributed to by her own negligence and that of other persons over whom he had no control.

Following the jury's dismissal of Mrs. Koland's complaint she made a motion for new trial. This motion was denied by order of the court dated December 14, 1967, and her appeal is from that order.

Mrs. Koland contends that the trial court erred in failing to grant her motion for new trial for the following reasons: (1) the verdict is contrary to the law and to the evidence; (2) the verdict is contrary to the weight of the evidence; (3) the evidence shows one of the contributing proximate causes of the plaintiff's injuries was the negligence of the defendant, Clayton Johnson; (4) there is no substantial evidence that the plaintiff was guilty of contributory negligence; (5) the court should have granted her motion for a directed verdict at the close of the defendant's case; and (6) the court erred in failing to give a certain requested instruction to the jury.

She asserts that there are two basic issues presented by this appeal: (1) whether the evidence shows that one of the proximate causes of her injuries was the defendant's negligence; and, correspondingly, whether the jury could find that she was contributorily negligent; and (2) whether the court erred in failing to give a certain requested instruction.

She concedes that one of the proximate causes was the negligence of Mr. in driving the vehicle at an excessive speed in a cloud of dust while influenced by alcohol, but she insists that Mr. Johnson was negligent in stopping or suddenly reducing the speed of his vehicle on the roadway when he knew or should have known that a vision-obscuring cloud of dust existed to his rear.

She argues that if this court should find that Mr. Johnson's conduct constituted negligence (and that his negligence was a proximate cause of her injuries), the judgment based upon the jury's verdict must be reversed unless we should find that she was contributorily negligent.

As this court has said many times, there are certain fundamental rules which we apply in considering an appeal from an order denying a motion for new trial based upon the insufficiency of the evidence. We stated them in a recent case:

Questions of negligence, proximate cause, contributory negligence, and assumption of risk are ordinarily questions of fact for the jury; it is only when the evidence is such that reasonable men can draw but one conclusion therefrom that they become questions of law for the court. (citations omitted)

Whether a motorist is confronted with an emergency and, assuming that he was confronted with an emergency, whether he acted negligently, are also jury questions unless the evidence is such that reasonable men can draw but one conclusion therefrom. (citation omitted)

In determining the sufficiency of the evidence to sustain the verdict, the evidence must be viewed in the light most favorable to the verdict. (citation omitted)

The credibility of the witnesses and the weight to be given to their testimony are questions of fact for the jury to determine. (citation omitted)

Degenstein v. Ehrman, 145 N.W.2d 493, 503--504 (N.D.1966).

In the light of these rules, let us review the evidence, which is, for the most part, undisputed.

Lorna Christensen, then 18 years old, started the evening of July 27, 1962, by leaving Maxbass at about 6:30 with two friends, Carolyn Thompson and Sharon Webber, to attend a movie in Westhope. They rode in Sharon's father's car, with Sharon driving; returned to Maxbass about 9:30; and decided to go to a dance at Russell, abut 3 miles south of Newburg. They arrived at the dance pavilion about 10:30; bought tickets; and, because no one was in the pavilion, went out and sat in Sharon's car until about 11:00. They then saw Rodney McLachlan and Sharon's brother Robert and joined them in Robert's car for about half an hour. During this time both the men were drinking beer. The girls apparently then left the car to have supper, later returned to it for a short time, and thereafter Lorna spent the rest of the evening until about 1:45 a.m. dancing in the pavilion. Sharon Webber had wanted to leave early and had done so; and as Lorna had been invited by Robert to ride home with him, when the time came to leave, she left with Robert. He told her that Rodney McLachlan was going to drive and that she should sit with him in the back seat, which she did.

Lorna stated that she thought that she had perhaps seen Rodney drink a couple of cans of beer all the time they were together; and he conceded on cross-examination that he may have had nine beers and one vodka (apparently during the course of the evening and early morning). In any case, Lorna testified that she thought he did not act out of the ordinary or seem to be influenced by alcohol when she got into the...