McCommon v. Hennings, 9613
| Decision Date | 02 August 1979 |
| Docket Number | No. 9613,9613 |
| Citation | 283 N.W.2d 166 |
| Court | North Dakota Supreme Court |
| Parties | Patricia D. McCOMMON, Plaintiff and Appellant, v. Lee Allen HENNINGS, Defendant and Appellee. Civ. |
David E. Nething, Jamestown, for plaintiff and appellant.
Carlton J. Hunke, of Vogel, Brantner, Kelly, Knutson, Weir & Bye, Fargo, for defendant and appellee.
This is an appeal by the plaintiff, Patricia D. McCommon, from the order of the Stutsman County district court dated October 18, 1978, denying her "Motion for a New Trial on Sole Issue of Damages or in the Alternative Motion for Judgment of Damages Notwithstanding the Verdict." We affirm.
This case involved an action for personal injuries allegedly sustained by McCommon as a result of a rear-end collision on July 2, 1974. At approximately 10:50 a. m. on that day, McCommon, while driving her 1971 Pontiac automobile, was proceeding in a northerly direction on Second Avenue, N.W. She slowed and stopped her vehicle behind three other vehicles which were stopped at the Fifth Street, N.W., intersection. Her vehicle was then struck in the rear by a tractor-mower unit driven by the defendant, Lee Allen Hennings. The jury determined that Hennings was responsible for the accident. No appeal has been taken from that determination. However, the jury assessed damages against Hennings in the sum of "none" dollars, and from this determination McCommon has appealed.
On appeal, McCommon asserts that the jury verdict assessing no damages was contrary to the evidence and that the trial court erred in denying her motion for a new trial on the issue of damages or, in the alternative, for a judgment of damages notwithstanding the verdict.
Our court, in reviewing evidence upon appeal from an order denying a motion for new trial, must do so in the light most favorable to the verdict, and such review is limited to a consideration of whether there is substantial evidence to sustain the verdict. Belinskey v. Hansen, 261 N.W.2d 390 (N.D.1977). This court will not reverse a trial court's denial of a motion for new trial unless such denial constitutes an abuse of discretion by the trial court. Belinskey v. Hansen, supra.
On a motion for judgment notwithstanding the verdict, the evidence must also be viewed in the light most favorable to the verdict, and such motion shall not be granted unless the evidence shows that the moving party is entitled to judgment as a matter of law. The motion must be denied unless the court finds that the evidence, viewed most favorably to the party against whom the motion is made, compels but one conclusion as to the verdict with which no reasonable man could differ. Staiger v. Gaarder, 258 N.W.2d 641 (N.D.1977).
To support her assertion of injury and claim for damages against Hennings, McCommon offered her own testimony, the testimony of her husband, Donald McCommon, and the testimony of Dr. Robert Ralph Ivers, a neurological specialist practicing in Fargo.
McCommon testified as follows: Following the accident, during the afternoon of the same day, she secured an appointment with Dr. John A. Beall because she "had a terrific headache and pains across my shoulders." Dr. Beall prescribed medication, gave her a cervical collar to wear, and ordered that X-rays be taken. McCommon saw Dr. Beall again on July 4, at which time he prescribed a different medication "because of the headaches." Later that same month Dr. Beall prescribed a head-halter traction set for McCommon "to pull the muscles in the back of the neck." According to McCommon, none of the treatments alleviated her headaches or the pain in her neck and shoulders. On her fourth appointment with Dr. Beall, he asked her if she would like to see a neurologist in Fargo. She responded affirmatively and he referred her to Dr. Ivers. During McCommon's first appointment with Dr. Ivers, on September 18, 1974, he told her to continue using the head-halter traction set, to add heat and massage treatments, and to perform certain exercises. At a later appointment, on January 28, 1977, Dr. Ivers also prescribed for McCommon an electrode stimulator with "electrodes that connect to the back of the neck and on the shoulders" for the purpose of relieving pain.
McCommon's husband, Donald, testified that since the accident McCommon complained that she had continual pain and that "you can tell in the way she does things or tries to do things that she is obviously having pain or difficulties." He testified that she also complained of having headaches and that since the accident she was having difficulty sleeping. He further testified that she doesn't seem to be the same person physically and that "she isn't able to do the things there that she normally did as often or as frequently as she did."
Dr. Ivers testified that upon examining McCommon it was his clinical impression that she had a sprain or musculigmentis injury to her cervical spine and upper dorsal spine, i. e., that she had a tearing of the ligament and muscles located in the neck and upper-back region. He further testified that in his opinion McCommon had a ten percent permanent-partial disability based on the function of her neck.
To refute McCommon's assertion of injury and claim for damages, Hennings relied primarily on the cross-examination of McCommon and Dr. Ivers as well as her past medical records. The evidence, viewed in the light most favorable to the verdict assessing no damages against Hennings, reveals, inter alia, the following pertinent facts:
(a) At the time of the rear-end collision the tractor-mower unit was traveling at a speed of less than 16 miles per hour.
(b) McCommon's automobile was not moved forward upon impact with the tractor-mower.
(c) McCommon's granddaughter, who was a passenger in McCommon's automobile at the time of the collision, was not injured, nor was Hennings, the driver of the tractor-mower, injured.
(d) As a result of the collision, McCommon did not sustain any bruises, cuts, or scratches.
(e) On direct examination McCommon testified that since the accident she was unable to golf more than once a week. On cross-examination, when confronted with the golf records, McCommon conceded that since the accident she had purchased season golf tickets and that there were times when she golfed more than once a week.
(f) McCommon is a nervous person.
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