Lake v. Neubauer
| Decision Date | 13 February 1958 |
| Docket Number | No. 7712,7712 |
| Citation | 87 N.W.2d 888 |
| Parties | Elsie LAKE, Plaintiff and Respondent, v. Carlton NEUBAUER, Defendant and Appellant. |
| Court | North Dakota Supreme Court |
Syllabus by the Court.
1. Whether any evidence should be excluded for remoteness rests largely in the discretion of the trial court.
2. A woman housekeeper with no income suing for injuries received in a collision, when the tort is admitted or proven, is entitled to reasonable compensation for loss of capacity to perform her duties as housekeeper and for physical injuries, pain and suffering.
3. Where the only issue as to damages raised during the trial and presented to the jury by the court was compensation for loss of capacity to act as housekeeper and for physical injuries, pain and suffering on which the jury was properly instructed, and it is apparent from a consideration of the verdict and the evidence in the case that the verdict could have included only those elements of damage which the jury was instructed to consider, a refusal to give a requested instruction that the jury 'were not to consider loss of nursing income in arriving at the damages in this case' was not prejudicial error.
4. Motion for a new trial, on the ground of excessive damages alleged to have been given under the influence of passion and prejudice, is addressed to the sound judicial discretion of the trial court and the Supreme Court will not interfere unless a manifest abuse of discretion by the trial court is shown.
5. In the instant case it is held that under the evidence and circumstances of the case the trial court did not abuse its discretion in denying the motion for a new trial.
Quentin N. Burdick, Fargo, for appellant.
Strutz, Jansonius & Fleck, Bismarck, for respondent.
This is a suit for damages resulting from injuries caused by an automobile collision. The plaintiff claims that the collision was due to the negligence of the defendant and asks for $50,000 general damages. The defendant admitting the accident, claimed at first that the negligence of the plaintiff was the cause of, or at least contributed to, such accident and set up a counterclaim for damages he claims to have suffered. Before trial, however, defendant withdrew his counterclaim and filed an admission that his negligence was the cause of the collision and of plaintiff's resulting injuries, but denied that the injuries were as extensive as claimed by the plaintiff. The liability of the defendant having been admitted the only matter for trial was the amount of plaintiff's damages. The jury returned a verdict for the plaintiff and against the defendant for $9,000.
Promptly thereafter the defendant made a motion for a new trial and specified as error that the evidence relating to plaintiff's previous occupation as a nurse was admitted over objection and that the court erred in refusing to strike out such testimony. Defendant also assigned as error the refusal of the court to give to the jury an instruction proposed by the defendant. He further specified the insufficiency of the evidence to support the verdict. He claims the verdict was based on passion and prejudice. The court denied the motion and judgment for plaintiff was entered. This is an appeal from the order denying the motion and from the judgment. The same errors are again alleged on the appeal and in addition that the court erred in denying the motion for a new trial.
The defendant sets up four specifications of error relating to the admission of the evidence of plaintiff's prior occupation as a nurse. All questions in regard thereto were properly objected to. The objections were overruled. He also moved to strike that evidence. That motion was denied.
The argument made on the questions so raised was that the evidence of plaintiff's nursing four years before the accident was too remote and immaterial. The burden was on the plaintiff to show her good health at the time of the accident. In addition to her being able to carry on nursing, she testified to her same healthy condition down to the time of the accident. The admission of that testimony was a matter resting largely in the discretion of the trial court. Kemmer v. Sunshine Mutual Insurance Co., 79 N.D. 518, 57 N.W.2d 856; In Kugling v. Williamson, 231 Minn. 135, 42 N.W.2d 534, 539, it is said: 'Whether evidence should be excluded for remoteness rests largely in the discretion of the trial court.' See also Long v. Leonard, 113 Vt. 258, 32 A.2d 679; 20 Am.Jur. Evidence, Sec. 259, p. 243, Sec. 306, p. 284. The question here was plaintiff's condition before the collision. The weight of the evidence objected to was for the jury. The admission thereof was not an error.
The defendant claims as error the refusal of the court to instruct the jury that, 'You are not to consider the loss of nursing income which may occur in arriving at the damages in this case.' This instruction must be considered in the light of the pleadings, the course of trial and instructions of the court. American Fidelity & Casualty Co. v. Farmer, 77 Ga.App. 187, 48 S.E.2d 137. The loss of nursing income by plaintiff did not become an issue in the case. The jury was properly instructed as to the issues in the case relating to damages, and while there is evidence that plaintiff had been a nurse, it is apparent from the record, as is hereinafter pointed out, that the jury confined its award to the items of damages upon which it was instructed by the court. The refusal to give the requested instruction was therefore not prejudicial error.
Defendant's further argument is that the evidence is not sufficient to support the verdict and that the court erred in denying the motion for a new trial. In support of that claim he alleges that the evidence shows plaintiff was not seriously injured; that she was a housewife with no income; that there was no sufficient evidence to show that sum of money would be a reasonable compensation for her injuries.
The evidence shows that at the time of the accident plaintiff was a healthy woman, 44 years of age, with a life expectancy of 26.01 years; that she kept house for her husband and daughter and did all of the housework, including washing, cleaning and cooking. As to what happened in and after the accident, which was a head-on collision, she testified: She testified she had difficulty in walking, climbing stairs and could do no lifting. She was in bed three weeks and after she got up she says she just 'puttered' around while her daughter did the work. She said she still suffered great pains at the time of the trial almost two years after the accident.
Dr. Nelson, who took care of her immediately after the accident, found her injuries severe, definitely painful and likely to continue in the future. Dr. Hart, the orthopedic surgeon who later treated her, testified that there had been some injury to the neck vertebra; that the muscles in the back of her neck were injured so as to limit motion in her neck about 25 percent; that the X-rays revealed a slip forward of the 6th. vertebra on the 7th. vertebra, and a small fracture in the back portion of the 7th. vertebra. He said that would produce bad headaches and pains in her head and neck and some presure and irritation on the nerves. He testified that this condition would be permanent unless a very serious and dangerous operation were performed. He said her knees were also injured.
The defendant depended entirely on the cross-examination of plaintiff and her witnesses. He offered no testimony. Thus there is plaintiff's undisputed evidence of severe injury, suffering and distress of body and mind, and of future and permanent injury which, to a reasonable certainty she will sustain in the future, proximately...
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