Kresel v. Giese

Decision Date24 June 1975
Docket NumberNo. 9089,9089
Citation231 N.W.2d 780
PartiesDavid M. KRESEL, Plaintiff and Appellee, v. Roger H. GIESE, Defendant and Appellant. Civ.
CourtNorth Dakota Supreme Court

Syllabus by the Court

1. In determining the sufficiency of the evidence to sustain the verdict of the jury, this court must view the evidence in the light most favorable to the verdict.

2. In determining the sufficiency of the evidence to sustain the verdict of the jury, review of the facts by this court is limited to consideration of whether there is substantial evidence to sustain the verdict and if substantial evidence to sustain the verdict is found, that verdict must stand.

3. Issues of negligence, proximate cause, and contributory negligence ordinarily are fact questions for the jury and only when the evidence is such that reasonable men can draw but one conclusion do these become issues of law for the trial court.

4. The rule prohibiting references to the fact that the defendant is covered by liability insurance during the course of a trial extends to prohibiting the disclosure of the fact that the defendant is not covered by such insurance.

5. A witness may be impeached on cross-examination by inquiries as to collateral facts tending to incriminate, disgrace, or degrade him and where such inquiry is as to a previous conviction of a criminal offense, the inquiry is not limited to felony convictions, but may include traffic offense convictions which are misdemeanors.

6. The question of whether by reason of the misconduct of counsel a new trial should be granted rests almost entirely in the discretion of the trial court, and in the absence of a clear abuse of discretion, its decision on the question will not be reversed on appeal.

7. The granting of a mistrial is an extreme remedy which voids all proceedings taken in a case up to that time, and the practice should be resorted to only when further proceedings would be productive of great hardship or manifest injustice.

Murray, Mack, Moosbrugger & Leonard, Grand Forks, for plaintiff and appellee; argued by John Moosbrugger.

Bruce E. Bohlman, Special Asst. Atty. Gen., for Unsatisfied Judgment Fund, Grand Forks, for defendant and appellant; argued by Bruce E. Bohlman, Grand Forks, and John Schneider, Senior Law Student.

ERICKSTAD, Chief Justice.

The defendant, Roger H. Giese, appeals from a judgment entered against him in the sum of $11,810 plus interest and costs and from the order denying his motion for judgment notwithstanding the verdict or, in the alternative, for a new trial.

As we must view the evidence upon an appeal of an order denying such a motion in the light most favorable to the verdict, and as the parties do not disagree on the facts generally, we shall accept, except where disputed, the facts as they are stated in the brief filed on Kresel's behalf.

On the evening of January 28, 1972, Roger Giese decided to drive his automobile to his apartment which is located south of the Grand Forks K--Mart store in Grand Forks. He and his friend left for the apartment in his 1963 Chevrolet automobile. Leaving University Avenue, they traveled south upon South Washington Street until turning onto the service road which lies west and parallel to South Washington Street at 17th Avenue South. They proceeded south on the service road until Giese turned his auto into the K--Mart parking lot at a point east and south of the K--Mart sign and south of the Bonanza Sirloin Pit. At this point, Giese drove his vehicle in a southwesterly direction diagonally across the K--Mart parking lot. Approximately 85 feet west of the service road, the left front fender of Giese's auto collided with the rear quarter panel on the driver's side of a 1965 Dodge Dart which was driven by Kresel.

Prior to the collision, Kresel had been shopping in the K--Mart store and had left the K--Mart area by driving east on a concrete lane which intersects with the service road parallel to South Washington Street. This particular lane extends east and west and if extended westerly, would intersect with the doors of the food department of the K--Mart store. To the north of this area is an asphalt parking area delimited by a parallel concrete entrance lane which extends past Budget Drug. To the south are numerous asphalt parking areas interspersed with parallel concrete exit lanes.

About 75 feet north of the lane which Kresel was using in leaving the parking lot was a snowbank about 10 feet high. The snowbank extended from 25 feet west to 100 feet west of the service road paralleling South Washington Street.

At 8:39 p.m. and about 100 feet west of the service road, Kresel observed a car approaching diagonally from his left from behind the snowbank. A second or two later and after traveling approximately 15 feet, the approaching car struck the left rear quarter panel of his car. The impact spun Kresel's car around so that it came to rest facing in a westerly direction. Kresel's vehicle incurred damages totaling $400 to $500.

The parking lot at the time of the collision was generally icy with intermittent patches of clear asphalt and concrete. This was a condition prevalent throughout the city of Grand Forks at that time.

After the accident, Giese admitted at the scene of the accident that the accident was his fault. He asked Kresel not to call the police, and requested that he come to his place where he would pay for the damages. The police, however, were called by one James Bies who was a passenger in the Kresel vehicle.

On several occasions thereafter, Kresel contacted Giese in an attempt to secure payment for the damages to his automobile. Each time Giese affirmed his intentions to pay the damages, but ultimately told Kresel to forget it since he didn't have any money.

At the time of the collision, Kresel was knocked about in his automobile and suffered therefrom injuries to his head, neck, and back which caused him to have headaches, a stiff neck, and numbness in the arms and legs. He testified that his headaches occurred three or four times a week and that he took aspirin to relieve the pain, that normal work initiated the headaches, that physical exertion aggravated them, and that car trips increased them. His wife substantiated his testimony relative thereto.

A. E. Culmer, Jr., a medical doctor, testified that the plaintiff's injuries from the accident caused him permanent partial disability of 10 percent to the cervical spine and of 5 percent to his body as a whole. He further testified that the type of injuries sustained were consistent with the kind of accident in which Kresel was involved.

It is Giese's initial contention on appeal that the trial court should have granted his motion for judgment notwithstanding the verdict or, in the alternative, for a new trial on the ground that the evidence was insufficient to justify the verdict in that the evidence did not support the jury's finding that he was negligent. We recently addressed ourselves to this question in Waletzko v. Herdegen, 226 N.W.2d 648 (N.D.1975), wherein we said:

'As to the trial court's denial of Waletzko's motion for judgment notwithstanding the verdict or in the alternative for a new trial, the credibility of the witnesses and the weight to be given their testimony are questions of fact for the jury to determine. In determining the sufficiency of the evidence to sustain the verdict of the jury, we must view the evidence in the light most favorable to the verdict. Johnson v. Auran, 214 N.W.2d 641 (N.D.1974); Watkins Products, Inc. v. Stadel, 214 N.W.2d 368 (N.D.1974); Lembke v. Unke, Supra (171 N.W.2d 837 (N.D.1969)); Frank v. Daimler-Benz, Supra (226 N.W.2d 143 (N.D.1974)). Our review of the facts is limited to consideration of whether there is substantial evidence to sustain the verdict; if there is, we are bound by the verdict. Watkins Products, Inc. v. Stadel, Supra; Lembke v. Unke, Supra.' 226 N.W.2d 648 (N.D.1975).

Having reviewed the record before us, we find when viewing the evidence in the light most favorable to the verdict that the jury could have found that under the adverse driving conditions presented by a slippery road surface after dark, Giese drove his automobile from behind a snowbank in such a manner that it could not be seen by Kresel, and that he drove his automobile at an angle to the designated lanes for travel and not in a proper traffic lane. The jury could properly have concluded from these facts that Giese operated his automobile in a negligent manner. We must find on the basis of the above that the jury had before it substantial evidence to sustain its verdict. We are therefore bound by that verdict and cannot substitute our judgment for that of the jury.

The second issue raised by Giese is whether the trial court erred in failing to grant his motion for a directed verdict on the ground that Kresel was guilty of contributory negligence. We have said in many cases, including Brauer v. James J. Igoe & Sons Construction, Inc., 186 N.W.2d 459, 468 (N.D.1971), from which we quote 'Issues of negligence, proximate cause, and contributory negligence ordinarily are fact questions for the jury. Only when the evidence is such that reasonable men can draw but one conclusion do these become issues of law for the trial court. Gleson v. Thompson, 154 N.W.2d 780 (N.D.1967); Degenstein v. Ehrman, 145 N.W.2d 493 (N.D.1966).

'If fair minded men in the exercise of reason and judgment may draw different conclusions from the evidence, then the issues of negligence, proximate cause, and contributory negligence must be submitted to the jury. Lindenberg v. Folson, Supra (138 N.W.2d 573 (N.D.1965)); Schmitt v. Northern Improvement Co., 115 N.W.2d 713 (N.D.1962).' Brauer v. James J. Igoe & Sons Construction, Inc., 186 N.W.2d 459, 468 (N.D.1971).

We find upon reviewing the record before us that the evidence cannot be said to compel the singular conclusion that Kresel acted in a negligent manner, but find rather that...

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