LaBree v. Dakota Tractor & Equipment Company
| Decision Date | 14 December 1940 |
| Docket Number | 6708 |
| Citation | 295 N.W. 313,70 N.D. 421 |
| Court | North Dakota Supreme Court |
Syllabus by the Court.
Where the trial court grants a new trial because of the unsatisfactory nature of the evidence, such action will not be reversed unless it is shown clearly that the discretion of the court has been abused.
Appeal from District Court, Cass County; Daniel B. Holt, Judge.
Action by Gordon W. La Bree against the Dakota Tractor & Equipment Company, for injuries sustained in an automobile collision. Judgment was entered for plaintiff. From an order granting motion for new trial, the plaintiff appeals.
Affirmed.
Thorp Wattam & Vogel, for appellant.
The purposes of the instructions is to apply principles of law to the issues, and this purpose is defeated and error is committed by instructions which present issues not made by the pleadings. Reid's Branson, Instructions, 323, § 117.
It is error for the court to submit a case to the jury upon issues not made by the pleadings. Schwabel v. First Nat Bank, 53 N.D. 904, 208 N.W. 236; Gunther v Baker, 48 N.D. 1071, 188 N.W. 575.
Where a specific act of negligence is alleged the charge of the court must confine the jury to that issue. Reid's Branson, Instructions, 326, § 117; Cleasby v. Taylor (Wash.) 28 P.2d 795; Pickett v. Gray (Or.) 31 P.2d 652.
Instructions must be based on the evidence adduced within the pleadings. Reid's Branson, Instructions, 331, § 119; Foster v. Dwire, 51 N.D. 581, 199 N.W. 1017, 51 A.L.R. 21.
If appellant desired more explicit instructions than were given by the court, they ought to have been presented to the court in writing, with the request that they be given. Landis v. Fyles, 18 N.D. 587, 120 N.W. 566. Not having been requested, the defendant cannot be heard to complain. State v. Haynes, 7 N.D. 352, 75 N.W. 267; State ex rel. Pepple v. Banik, 21 N.D. 417; 14 R.C.L. 795; McGregor v. Great Northern R. Co. 31 N.D. 471, 154 N.W. 261; State v. Glass, 29 N.D. 620, 151 N.W. 229; Mutual L. Ins. Co. v. Snyder, 93 U.S. 393, 23 L. ed. 887; Huber v. Zeiszler, 37 N.D. 556, 164 N.W. 131.
The court's instructions must be considered as a whole. Thompson, Trials, § 2407; 38 Cyc. 1778; Gagnier v. Fargo, 12 N.D. 219, 96 N.W. 841; Wyldes v. Patterson, 31 N.D. 282, 153 N.W. 630.
The credibility of a witness being for the jury, courts are not authorized to reject his testimony and refuse to submit the case to the jury on the ground that the facts stated are highly improbable. Larson v. Bliss (N.M.) 3 C.C.H. Automobile Cases, p. 960.
An order granting a new trial grounded solely on a question of law is not a discretionary order. Eddie v. Wells, 59 N.D. 663, 231 N.W. 785; Kohlman v. Hyland, 56 N.D. 772, 219 N.W. 228.
The discretion vested in the trial court to grant or refuse a new trial is neither an arbitrary nor a general discretion. Braithwaite v. Aiken, 2 N.D. 57, 49 N.D. 419; Martin v. Parkins, 55 N.D. 339, 213 N.W. 574; Donahue v. Boynton, 62 N.D. 182, 242 N.W. 530.
To constitute contributory negligence as a matter of law, the circumstances must be such that no other inference can be fairly drawn Newton v. Gretter, 60 N.D. 635, 236 N.W. 254; Motley v. Standard Oil Co. 61 N.D. 660, 240 N.W. 206; Gausvik v. Larsen Richter Co. 55 N.D. 218, 212 N.W. 846.
Nilles, Oehlert & Nilles, for respondent.
It is error for the court to submit a case to the jury on issues not made by the pleadings. Schwabel v. First Nat. Bank, 53 N.D. 904, 208 N.W. 236.
A total failure to instruct upon the essential and controlling issues in controversy constitutes prejudicial error. Putnam v. Prouty, 24 N.D. 517, 140 N.W. 93.
Where plaintiff in his complaint alleges merely specific acts of negligence on defendant's part, he will be restricted on the trial to proof of such acts. Gast v. Northern P.R. Co. 28 N.D. 118, 147 N.W. 793; Hall v. Northern P.R. Co. 16 N.D. 60, 111 N.W. 609.
The scope of the instructions must be determined by the pleadings and by the evidence. Schwabel v. First Nat. Bank, 53 N.D. 904, 208 N.W. 236; Messer v. Bruening, 25 N.D. 599, 142 N.W. 158.
Nondirection, unless it amounts to misdirection, in a matter of law in a civil case is not reversible error. Huber v. Zeiszler, 37 N.D. 556, 164 N.W. 131.
The discretion of the trial court should be exercised in all cases in the interest of justice. Kohlman v. Hyland, 56 N.D. 772, 219 N.W. 228; Security State Bank v. Groen, 59 N.D. 431, 436, 230 N.W. 298.
The appellate court is more reluctant to interfere in a case where a new trial has been granted than where it has been denied. Blum v. Standard Oil Co. 68 N.D. 329, 279 N.W. 764.
More and more the "rule of safety" is being recognized as the imperative duty of the driver. Garrison v. Detroit, 270 Mich. 237, 258 N.W. 259.
A motion for a new trial on the ground of insufficiency of the evidence is addressed to the sound legal discretion of the trial judge and his order granting or refusing it will not be disturbed on appeal unless it appears there has been a manifest abuse of discretion. Kavanaugh v. Nestler, 45 N.D. 376, 177 N.W. 647.
The plaintiff had judgment against the defendant for injuries received in a collision alleged to occur on January 2, 1938, but actually on December 27, 1937. The defendant moved for judgment non obstante, or in the alternative for a new trial. The motion for judgment notwithstanding the verdict was granted without considering the motion for a new trial. Plaintiff appealed, and this court reversed. In our decision we state:
The case, therefore, was remanded to the trial court for further proceedings. See LaBree v. Dakota Tractor & Equipment Co. 69 N.D. 561, 288 N.W. 476.
Upon remand, the trial court heard the motion for a new trial, granting the same; and from the order, the plaintiff appeals.
In the motion for a new trial, defendant sets forth as specifications of error: That the evidence was insufficient to justify the verdict; that the one who was in control of and operating the machine which collided with the car of the plaintiff was an independent contractor, and, therefore, the defendant was not connected in any way with the collision; that the defendant was not guilty of negligence; that the plaintiff was guilty of contributory negligence, which, as a matter of law, barred his recovery; and alleged errors in the instructions to the jury.
In the former decision we stated: "We are satisfied there was ample evidence to go to the jury to determine this issue," the issue of independent contractor. It will be noted we did not hold that the evidence was such that this issue was conclusively established. The case was remanded in order that the trial court would determine whether justice would be furthered by granting a new trial.
The court stated distinctly that the order granting a new trial was based "upon the following grounds, to wit:
The instruction which defendant says was error is that portion of the charge wherein the court stated: "In this connection the court instructs the jury, that if you should find by a fair preponderance of the evidence in the case that the said Oxenrider was at the time of the alleged accident an agent, servant and employee of the defendant, and at said time and place was in charge of and was driving said road grader within the scope of his agency and employment; and if you further so find that the said Oxenrider was at said time and place driving said road grader in a careless and negligent manner, then and in that event the defendant is responsible for damages, if any, caused by the negligent act, if any, of said servant and employee, provided you find from all of the evidence in the case that said damages, if any, caused by the negligent act of said Oxenrider, if any, resulted proximately, as that term has been heretofore defined, in the injury and consequent damages suffered by the plaintiff."
For a clearer understanding, we state that Oxenrider was the one who was driving the road grader, the collision taking place at a point on Highway No. 10 between Casselton and Fargo. It was claimed by plaintiff that Oxenrider was an employee of the defendant, while defendant claimed he was an independent contractor.
This instruction of which the defendant complains is not the entire portion of the charge on this issue. In that portion of the memorandum opinion dealing with this issue, the learned judge states he was clearly of the opinion that the instructions ought to have been more precise in informing the jury clearly on all the issues raised by the pleadings and the proof. However, we do not pass upon whether it would have been better to have stated this issue more elaborately. The defendant did not ask for further instructions; and the law governing any relationship between Oxenrider and the defendant, the effect of his negligence, if any, and the determination of the proximate cause of the collision required to be shown before the plaintiff could recover, was stated to the jury.
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