Larson v. Meyer
| Decision Date | 19 September 1968 |
| Docket Number | No. 8460,8460 |
| Citation | 161 N.W.2d 165 |
| Parties | Sivert LARSON, Plaintiff and Appellant, v. DeMar MEYER and Alfred Eggermont, Defendants and Respondents. Civ. |
| Court | North Dakota Supreme Court |
Syllabus by the Court
1. The admission of the results of an experiment into evidence rests in the sound discretion of the trial court and that decision will not be disturbed by an appellate court without evidence clearly indicating an abuse of that discretion. For reasons stated in the opinion we find the trial court did not abuse its discretion.
2. To be admissible, evidence of experiments must be shown to have been made fairly and honestly, by a competent person, under conditions substantially similar to those prevailing at the time of the occurrence to which they relate.
3. Minor variations in conditions surrounding experiments go to the weight of the evidence, rather than to its admissibility.
4. As a general rule the trier of fact has the final decision in determining the credibility and weight to be attached to evidence.
5. The fact that an experiment was made ex parte and without notice to the adverse litigant, does not render it incompetent but affects the weight to be attached to such evidence.
Lanier, Knox & Shermoen, Fargo, for appellant.
Nilles, Oehlert, Hansen, Selbo & Magill, Fargo, for respondents.
The litigation in question resulted from the death of plaintiff's wife who was crushed when the tractor she was operating overturned backwards while attempting to pull a bulk milk truck owned by one defendant and operated by the other.
Action was originally commenced by the plaintiff, Sivert Larson, as the surviving husband, for the use and benefit of himself and the surviving children under the provisions of chapter 32--21 of the North Dakota Century Code entitled Death by Wrongful Act. At the first trial, the jury returned a verdict in favor of the plaintiff. This Court reversed the judgment and a new trial was granted (Larson v. Meyer, N.D., 135 N.W.2d 145). The second trial resulted in a jury verdict dismissing plaintiff's complaint. The judgment entered upon that verdict is now before us on appeal.
Defendant, DeMar Meyer, is a trucker who hauls milk to the creamery for individual farmers. The truck involved in the accident was owned by defendant, Meyer, and driven by defendant, Alfred Eggermont. The plaintiff was a customer of DeMar Meyer.
On May 14, 1962, the clutch linkage of Meyer's milk truck broke so that it was unable to be shifted into reverse. Before reaching the plaintiff's farm, the driver, Eggermont, had the truck repaired. The milk truck then continued its route and reached the plaintiff's farm around 5:00 p.m. Eggermont drove through the farmyard to the milk shed and stopped. He attempted to back the truck to the loading point but was unable to do so because the clutch linkage had again broken at the same place it had been welded earlier that day.
Mrs. Larson, the plaintiff's deceased wife, noticed the difficulty and offered to tow the truck back to the loading area with the plaintiff's tractor. Mrs. Larson drove the tractor to where the truck was standing and backed the tractor to the back of the truck. The tractor's drawbar was not attached because it had been removed to enable the field cultivator to be attached. At the time of the accident, the field cultivator had been removed from the tractor but the drawbar had not been replaced. Upon Mrs. Larson's suggestion, defendant, Eggermont, attached one end of an eight-to ten-foot log chain to the truck's trailer hitch located at the rear of the truck and the other end to the tractor's 'lift bar,' located at the rear of the tractor, approximately two feet above where the drawbar is ordinarily attached. The lift bar is not designed for pulling or towing, but is part of the tractor's hydraulic equipment which is used for lifting and carrying loads with a front end attachment.
After attaching the log chain to the truck and tractor, defendant, Eggermont, entered the cab of the truck, released the emergency brake and took the truck out of gear. Eggermont then motioned to one of Mrs. Larson's daughters who was standing near the two vehicles. She in turn motioned to her mother to begin towing the truck. As the tractor attempted to pull the truck, its front end began rising and subsequently overturned backward, crushing Mrs. Larson and causing her death.
The accident took place May 14, 1962, on the Sivert Larson farm, two miles west and a mile south of Binford, North Dakota. The tractor involved in the accident was a WD--45 Allis Chalmers. The milk truck was a 1957 International that was carrying a 2,000 bulk gallon milk tank. By noting the quantity of milk collected before the accident as well as the tare weight of the truck and tank, the estimated weight of the vehicle was between 19,000 and 20,000 pounds. The right front wheel of the truck was in a depression estimated to be four to six inches deep.
The terrain surrounding the milk loading area was sloped in a downward direction toward the stalled truck. Testimony indicated that there was a three and one-half foot drop from the rear wheels of the tractor to the front wheels of the truck. This is a distance of approximately 27 feet.
Plaintiff's counsel objected to the introduction in evidence of the results of an experiment on the ground that the conditions of the experiment were not substantially similar to those existing at the time of the accident. The objection was overruled and evidence of the results of the experiment was received. The results testified to were that the tractor could pull the load using a similar hookup without lifting the front end of the tractor from the ground.
The sole issue to be decided by this Court is whether the trial court abused its discretion by admitting the results of the experiment.
The experiment was conducted May 10, 1966, nearly four years after the accident. It was conducted on land located south of Valley City, North Dakota, approximately two miles east of the King school. This site is approximately 60 miles from the accident site. The WD--45 Allis Chalmers tractor used in...
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