Linington v. McLean County

• Decision Date: 24 September 1968
• Docket Number: No. 8480,8480
• Citation: 161 N.W.2d 487
• Parties: Patrick D. LININGTON, Plaintiff and Respondent, v. McLEAN COUNTY, a political subdivision of the State of North Dakota, Defendant and Appellant. Civ.
• Court: North Dakota Supreme Court

Page 487

161 N.W.2d 487

Patrick D. LININGTON, Plaintiff and Respondent, v. McLEAN COUNTY, a political subdivision of the State of North

Dakota, Defendant and Appellant.

Civ. No. 8480.

Supreme Court of North Dakota.

Sept. 24, 1968.

Rehearing Denied Oct. 15, 1968.

Syllabus by the Court

1. When a motion for judgment notwithstanding the verdict has been denied by the trial court, the evidence must be considered in a light most favorable to the party in whose favor the verdict was rendered and the trial court's order should not be overruled when there is an issue for the jury to determine.

2. On an appeal from an order denying motion for judgment notwithstanding the verdict, the only grounds which will be considered will be those which were assigned on the motion for a directed verdict.

3. A motion for a new trial based upon the insufficiency of the evidence is addressed to the sound judicial discretion of the trial court and the action of the trial court in passing on such motion will not be disturbed unless an abuse of discretion is clearly established.

4. One who asserts that he need not comply with the rules and regulations of the road has the burden of proving that he is exempt therefrom.

5. Questions of negligence, contributory negligence, and proximate cause are questions of fact to be determined by the jury and become questions of law only when reasonable men can draw but one conclusion from the evidence.

6. Exhibits which are not a part of the settled statement of the case should not be considered by this court on appeal.

7. Where the record discloses that a road maintainer was being operated on the left-hand side of a well-traveled highway, while proceeding up a steep grade, with an obstructed view, without any warning devices of any kind being present except a small red flag mounted on the cab, whether such operation was safe and prudent was a question for the jury.

8. It is not error to permit inquiry as to the nature of the employment of a party at the time of his injuries for the purpose of establishing damages by reason of loss of earnings.

9. Evidence of general custom and usage is admissible in negligence actions to assist the jury in determining if the conduct was that of a reasonably prudent man, provided such custom and usage is reasonably related to similar conditions at the time and place of the accident.

10. Contributory negligence of a host driver of an automobile is not imputable to his guest but if the guest himself is guilty of contributory negligence it will bar his recovery against a negligent third person.

Duffy & Haugland, Devils Lake, for appellant.

Pringle, Herigstad, Meschke, Loder, Mahoney & Purdy, Minot, for respondent.

PAULSON, Judge.

This is a damage action for personal injuries sustained by the plaintiff, Patrick D. Linington, in a collision between a car driven by Jerry Stout and leased by the Boeing Company, their employer, and a Caterpillar road maintainer operated by Philip Zavalney, as an employee of the defendant, McLean County.

The jury returned a verdict in favor of Linington in the sum of $24,130.00 and judgment was entered on the verdict. McLean County, after the entry of judgment, moved for a judgment notwithstanding the verdict or in the alternative for a new trial. The trial court denied both phases of the motion and the County has appealed from the order denying the motion and from the judgment.

The collision occurred at approximately 1:30 p.m. on August 19, 1963, on McLean County Highway No. 27, about 1.7 miles south of its intersection with McLean County Highway No. 2 in McLean County, North Dakota. The accident took place about 100 feet south of the steepest hill on this particular portion of the highway. The vehicle in which Linington was riding as a passenger was being operated by Jerry Stout. Both Linington and Stout were within the scope of their employment at the time. McLean County Highway No. 27 is a graveled road, 23 feet in width at the point of the accident. The road was traveled considerably by persons associated with construction projects. The grader owned by McLean County was being operated in a northerly direction on the highway, on the left side and in the west lane thereof. The County did not display any signs, flares, markers, flags, or other devices on the highway to warn traffic that the grader was operating in the left lane. The sole warning device, which was on the 10-foot-6-inch-high road grader, consisted of a red flag extending approximately 3 feet above the cab of the grader. Linington and Stout were traveling in a southerly direction in the west lane of Highway No. 27, on their way to a missile site south of the scene of the accident. At the time of the accident the maintainer was grading the south incline of a hill on Highway No. 27 which obscured the view of traffic coming from the north. As the car in which Lington was riding came over the crest of the hill, the maintainer was approximately a distance of 100 feet from the crest of the hill and, at that point, about 7 feet below the top of the hill. Stout had observed the maintainer before attaining the crest in the road, as his vehicle laid down 113 feet of skid marks prior to the impact. Stout claimed he was driving the vehicle at a speed of from 40 to 50 miles an hour. The car, after skidding the distance mentioned, struck the maintainer, which weighed in excess of 34,000 pounds, and moved it backwards approximately 3 feet. There was no oncoming traffic, the day was clear, the visibility good, and the wind was not blowing. A driving space of 10 feet 8 inches existed to the right of the patrol. Linington incurred severe injuries, consisting of permanent disability of his left elbow and arm.

Linington alleges in his complaint that Zavalney was operating a county road grader in a northerly direction on McLean County Highway No. 27 on the west or left side of the road; that said operations were carried on negligently and carelessly and in an unsafe and imprudent manner so that the road grader collided with the motor vehicle in which the plaintiff was riding; that Linington incurred injuries and, as a result, he expended moneys for hospital, medical, and other expenses; and he prayed for the recovery of such expenses, together with loss of wages, and damages for permanent injury to his left elbow and arm.

The County answered, admitting that the accident occurred on the 19th of August, 1963, at the time and place set forth in the complaint, between the two vehicles operated by Stout and Zavalney respectively, and that Zavalney was an employee of McLean County and was working within the scope of his employment at the time of the accident. The County, in addition, alleged that the motor grader was engaged in the actual operation of grading on the left and west side of the road, with said motor grader being well marked by a red flag on a staff, and that it was operating legally thereon in a careful and prudent manner. As a third and final defense, the County alleged that Stout was operating his vehicle in a careless and negligent manner at an excessive rate of speed for the conditions of the road, having failed to maintain a proper lookout, and to keep his automobile under control; that Stout's negligence was the sole and proximate cause of the accident; and that any damages sustained by Linington were contributed to by the negligence of Stout and by Linington himself.

The County, with reference to the motion for judgment notwithstanding the verdict or in the alternative for a new trial before the trial court, set forth specifications and assignments of error.

We will first consider the County's appeal from the order denying the motion for judgment notwithstanding the verdict. Where such a motion has been denied, the evidence must be considered in a light most favorable to the party in whose favor the verdict was rendered. Such motion admits the truth of all inferences and conclusions which can reasonably be drawn from the evidence which are favorable to the party opposing the motion. Such motion should not be granted where there is an issue for the jury to pass on. Bartholomay v. St. Thomas Lumber Company, 148 N.W.2d 278 (N.D.1966); Linington v. McLean County, 146 N.W.2d 45 (N.D.1966); Larson v. Meyer, 135 N.W.2d 145 (N.D.1965); Chicago, M. St. P. & P.R.R. Co. v. Johnston's Fuel Liners, 130 N.W.2d 154 (N.D.1964); Bell v. Cardinal Drilling Co., 85 N.W.2d 246 (N.D.1957). Furthermore, on an appeal from an order denying motion for judgment notwithstanding the verdict, the only grounds which will be considered will be those which were assigned on the motion for a directed verdict. Hanson v. Fledderman, 111 N.W.2d 401 (N.D.1961); Leach v. Kelsch, 106 N.W.2d 358 (N.D.1960).

We have carefully examined the court's rulings with reference to the motion for a directed verdict and the evidence in this case and have concluded that the County would not have been entitled to a directed verdict at the close of the trial. Thus the trial court did not commit error in denying the County's motion for judgment notwithstanding the verdict.

We will next consider the County's contention that the trial court erred in not granting the County's motion for a new trial.

The motion for a new trial is based on the following grounds:

'SPECIFICATIONS OF ERROR

'1. That the Court erred in not allowing the testimony of Mr. Zavalney the grader operator, or an expert witness the McLean County Engineer Mr. Johnson, to testify as to the normal practice followed in McLean County with regard to grading and maintaining the roads and that the manner followed in the present instant was safe and prudent.

'2. Errors in the instructions to the jury and errors in failing to give instructions to the jury requested by the defendant.

'3. That the Court erred in giving the instructions contained in Pages 12, 13 and 14 through Line 19, as set out in the Court's written instructions which were delivered...