Larson v. Meyer

Decision Date13 May 1965
Docket NumberNo. 8169,8169
Citation135 N.W.2d 145
PartiesSivert LARSON, Plaintiff and Respondent, v. DeMar MEYER and Alfred Eggermont, Defendants and Appellants.
CourtNorth Dakota Supreme Court

Syllabus by the Court

1. On an appeal from an order denying a motion for judgment notwithstanding the verdict, the evidence must be construed in favor of the party against whom such motion is made, and such motion admits the truth of all inferences and conclusions which can reasonably be drawn from the evidence.

2. The trial of the facts is not required to accept the uncontradicted testimony of an uncorroborated interested party, although such testimony is not contradicted by other testimony.

3. Actionable negligence is a failure to observe a legal duty existing in favor of the person bringing the action. Where there is no duty, there can be no actionable negligence.

4. Ordinarily negligence of a person engaged in a joint or common enterprise is imputed to each of the others. However, this doctrine is not applicable to actions brought by one member of a joint enterprise against another to recover for injuries due to the latter's negligence.

5. Each participant in a joint enterprise owes the duty or ordinary care to his coadventurers.

6. Questions of negligence and contributory negligence are questions of fact for the jury. Where there is evidence of negligence on the part of the defendant, the findings of the jury on such questions will not be disturbed on appeal.

7. The instructions of the court must be considered in their entirety. Errors cannot be predicated on a part thereof where the charge as a whole is not subject to the objection made to the part challenged and when taken with the rest of the charge cannot have misled the jury.

8. The admission or rejection of photographs in evidence is largely within the discretion of the trial court.

9. The measure of damages for wrongful death under the statute is the amount the jury finds proportionate to the injury resulting from the death to the person entitled to the recovery. The jury may consider the pecuniary loss but cannot allow for loss of society and companionship or solatium.

10. A group photograph of the deceased, her husband, and five children, carrying Christmas greetings and the family name signed in pen, introduced as an exhibit in evidence in a wrongful death action being tried a few days before Christmas to a jury, is bound to be prejudicial in that it tends to arouse the passion and sympathy of the jury is weighing the evidence on the main issue.

11. The declaration of the trial court of a mistrial is an extreme remedy to be resorted to only when there is a fundamental defect in the proceedings of the trial or when to proceed would be productive of great hardship or manifest injustice. The proceedings in the instant case have been examined and it is found, for the reasons stated in the opinion, that the motions for mistrial were properly denied.

12. The determination of whether or not misconduct of counsel on the trial of a case is prejudicial is in the first instance for the consideration of and rests largely in the discretion of the trial court. It will not be disturbed on appeal except for abuse of that discretion.

13. Where a party alleges misconduct on the part of counsel in his argument to the jury and relies on the same as a ground for mistrial, he should not only object to the statement but request the court to take action by cautionary instructions to the jury or some other suitable action.

14. Counsel is allowed great latitude in presenting his arguments to the jury, subject to the regulation and control of the trial court whose duty it is to confine the argument within proper limits. It is only where it appears the alleged misconduct of counsel will deprive a party of a fair trial that a motion for mistrial on the ground of misconduct of counsel should be granted. The discretion of the trial court will not be disturbed on appeal unless it has abused its discretion.

15. The statements of counsel in his argument to the jury challenged as misconduct examined, as were the instructions of the court, and, although we find the statements of counsel asking the jury to apply the 'golden rule' improper, the instructions of the court immediately following instructed the jury as to the proper application of the law by which to judge the case and were sufficient to erase from the minds of the jury counsel's request and, therefore, held not prejudicial.

16. The affirmative defense of assumption of risk, when applicable as a bar to recovery, operates independently of negligence and proximate cause, except merely to expose the injured person to the danger; whereas, it is an essential feature of the defense of contributory negligence that the negligence of the injury person be a proximate cause of the mishap and resultant injury.

17. Where assumption of risk is pleaded as an affirmative defense, evidence is received from which it may be inferred, and the jury is instructed that it is pleaded as a defense in the case, it is fatal error to omit from the instruction to the jury a definition of the doctrine of assumption of risk and its effect, if found, on the right to recovery.

18. Evidence of relevant experiments is admissible in the trial of a wrongful death action where they are shown to have been made under donditions substantially similar to those prevailing at the time of the occurrence to which they relate, but their admission is primarily within the discretion of the trial court and the exercise of that discretion will not be disturbed by the appellate court unless it is abused. The record is examined and it is held, for the reasons stated in the opinion, that the trial court did not abuse its discretion.

Nilles, Oehlert & Nilles, Fargo, for defendants and appellants.

Roy A. Ployhar, Valley City, for plaintiff and respondent.

TEIGEN, Justice.

This is an appeal from an order denying defendants' alternative motion for judgment notwithstanding the verdict or for a new trial in a wrongful death action.

The action was brought by the plaintiff, as the surviving husband, for the use and benefit of himself and the surviving children, pursuant to the provisions of Chapter 32-21 of the North Dakota Century Code. The action was premised on the alleged negligence of the defendants. The defendants denied the allegation of negligence and affirmatively pleaded contributory negligence and assumption of risk. The case was trial to a jury and a verdict was returned in favor of the plaintiff.

At the close of the plaintiff's testimony, and again at the close of all of the testimony, plaintiff moved for a directed verdict which was overruled. The term of the district judge, who presided over the trial, expired before the motion for judgment notwithstanding the verdict or in the alternative for a new trial was heard. It was heard and denied by one of the other district judges in the district. It is from this order that the appeal is taken.

The issues on this appeal relate to the sufficiency of the evidence and several assignments of errors of law.

The defendants assert the evidence shows conclusively, as a matter of law, that there is no liability on their part. They assert the evidence is insufficient to support a finding by the jury of negligence on the part of the defendants, and that it conclusively establishes contributory negligence of the deceased or that she assumed the risk as a matter of law. They also assert that prejudicial error occurred during the course of the trial in that the court misinstructed the jury, including a failure to instruct in any manner on the affirmative defense of assumption of risk; that error occurred in the admission of certain evidence; and that the court erred in refusing to grant a mistrial following certain remarks of counsel.

The defendant DeMar Meyer is the owner of several trucks. He contracts to haul milk for various farmers to Fairmont Foods, a creamery located a Moorhead, Minnesota. He had established several routes and the plaintiff, Sivert Larson, was one of his customers on the north route located in the Binford-Cooperstown area. The defendant Alfred Eggermont was employed by the defendant Meyer as one of his drivers.

On May 14, 1962, the defendant Eggermont, driving one of the defendant Meyer's trucks, had mechanical trouble with the 1957 International truck which he was driving. He had left Valley City, North Dakota, where the defendant Meyer operated his business, about 7:00 a. m. He would ordinarily have finished his route and arrived back at Valley City about 6:00 p. m. When he was at the Rorvig farm, northest of Binford, he discovered that a part of the clutch linkage on the truck which he was operating needed repair. It was broken and he could not get the truck into reverse. He drove the truck to Edlund Motors at Binford about 10:00 a. m. After authorization was obtained from the defendant Meyer by telephone, the clutch linkage was repaired by welding.

The defendant Eggermont then continued on the milk route. He picked up milk at seven or eight farms and arrived at the plaintiff's farm between 4:30 amd 5:00 o'clock p. m. The truck, which carried a 2,000 gallon milk tank, was about threefourths full. It was driven to a point about 100 feet on the east side of the plaintiff's barn and milkshed and stopped. Eggermont then attempted to back the truck up to the milkshed located at the northeast corner of the plaintiff's barn so that the milk in the plaintiff's containers, located in the shed, could be emptied into the truck. There was a slope from the barn to the east. He found he was unable to put the truck into reverse gear as the clutch linkage had broken again at the same point where it had been welded by Edlund Motors.

The plaintiff was the owner of a W.D-45 Allis-Chalmers tractor. He had been using it that day in the field. He had removed the drawbar from the tractor so that the field...

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    ...the court admonish the jury to disregard the improper portion of the argument. Klein v.Harper, 186 N.W.2d 426 (N.D.1971); Larson v. Meyer, 135 N.W.2d 145 (N.D.1965); Quam v. Wengert, 86 N.W.2d 741 (N.D.1957); State v. Knudson, 21 N.D. 562, 132 N.W. 149 (1911). Otherwise, the objection is Th......
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