Mills v. Roggensack, 7776

• Decision Date: 30 October 1958
• Docket Number: No. 7776,7776
• Citation: 92 N.W.2d 722
• Parties: William R. MILLS, Plaintiff and Appellant, v. Kenneth C. ROGGENSACK and Amelia Roggensack, Defendants and Respondents.
• Court: North Dakota Supreme Court

Page 722

92 N.W.2d 722

William R. MILLS, Plaintiff and Appellant, v. Kenneth C. ROGGENSACK and Amelia Roggensack, Defendants and Respondents.

No. 7776.

Supreme Court of North Dakota Oct. 30, 1958.

Syllabus by the Court

1. Upon an appeal to the supreme court from a judgment rendered in an action not triable de novo upon appeal neither errors of law not appearing on the face of the judgment roll nor the sufficiency of the evidence may be reviewed in the absence of specifications of error.

2. Under the provisions of Section 28-1809, NDRC 1943, a party desiring to make a motion for a new trial must serve with the notice of motion a concise statement of the errors of law of which he complains and if he claims the evidence is insufficient to support the verdict or is of such a character that the verdict should be set aside as a matter of discretion he must so specify and point out wherein the evidence is insufficient.

3. An appellant has the burden of presenting a record affirmatively showing error.

4. Instructions on issues or matters not warranted by the evidence are erroneous but constitute reversible error only when calculated to mislead the jury.

5. Violations of the statutory rules of the road by drivers of motor vehicles are evidence of negligence.

6. In the absence of requests for instructions an appellant cannot predicate error on the claim that the instructions were not sufficiently specific unless there were omissions therein which amounted to misdirection.

7. Certain instructions examined and for reasons stated in the opinion are held not to be prejudicially erroneous.

William R. Mills, Bismarck, for plaintiff and appellant.

Wattam, Vogel, Vogel, Bright & Peterson, Fargo, for defendants and respondents.

MORRIS, Judge.

The plaintiff seeks to recover damages to his automobile and for the loss of use of the automobile while it was being repaired, all of which he alleges to have resulted from a collision between plaintiff's automobile and one driven by the defendant Amelia Roggensack that occurred at a street intersection in the city of Fargo. He claims the collision was caused by defendants' negligence.

The defendants admit the occurrence of the accident, deny plaintiff's allegations as to any negligence and allege that plaintiff's vehicle was damaged by his own negligence or that his negligence contributed to cause the damage.

The trial was to the court and jury and resulted in a verdict for the defendants upon which judgment was entered. Plaintiff made a motion for a new trial which was denied. The plaintiff appeals from the judgment and from the order denying his motion for a new trial.

We first direct our attention to the appeal from the judgment. Under the provisions of Section 28-1809, NDRC 1943, a party desiring to appeal from a judgment of the district court in an action not triable de novo in the supreme court is required to serve with the notice of appeal:

'a concise statement of the errors of law he complains of, and if he claims the evidence is insufficient to support the verdict * * * he shall so specify. A specification of insufficiency of the evidence to sustain the verdict * * * shall point out wherein the evidence is insufficient * * *'.

In Ripplinger v. Otten, 77 N.D. 531, 44 N.W.2d 60, we said:

'There can be no question but that an action in tort tried to a jury is not triable de novo upon an appeal to the supreme court. Upon such an appeal the review is limited to the errors assigned. * * * The only exception to this rule is where errors appear upon the face of the judgment roll. Wilson v. Kryger, 29 N.D. 28, 149 N.W. 721. As to such errors it is sufficient that they be argued in the brief.'

In the case before us there are no assignments or specifications of error in connection with the appeal from the judgment. It is not claimed that any errors appear on the face of the judgment roll. That appeal presents nothing for this court to review.

We now consider the appeal from the order denying plaintiff's motion for a new trial. Section 28-1809, NDRC 1943, to which we have referred applies to motions for a new trial made before the trial court as well as to appeals to the supreme court. This section requires that a party desiring to make a motion for a new trial must serve with the notice of motion a concise statement of the errors of law of which he complains and if he claims the evidence is insufficient to support the verdict or is of such a character that the verdict should be set aside as a matter of discretion he shall so specify. If he specifies that the evidence is insufficient to sustain the verdict he must point out wherein the evidence is insufficient. Montana-Dakota Utilities Company v. Culver, N.D., 80 N.W.2d 541; Nevland v. Njust, 78 N.D. 747, 51 N.W.2d 845.

In the specifications accompanying plaintiff's notice of motion for a new trial he assigns only errors of law. These are divided into two groups, errors in instructions given and errors in not giving certain instructions. These specifications do not mention the insufficiency of the evidence. Our review of the order denying the motion for a new trial is limited to the errors specified and does not include a review of the sufficiency of the evidence. The appellant has the burden of presenting a record affirmatively showing error. Robbins v. Robbins, N.D., 70 N.W.2d 37.

The collision occurred as plaintiff, who was driving north, was making a left turn from Eighth Street into Second Avenue. The defendants' car was traveling south on Eighth Street. In making the turn the plaintiff crossed the defendants' direction of travel and defendants' car struck the right side of the one being driven by the plaintiff. Cars were permitted to be parked and were parked on Second Avenue to plaintiff's right as he turned into that avenue. No cars were permitted to be parked to his left. Second Avenue was thirty-six feet wide. Plaintiff claims that the court erred in instructing the jury in substantially the language of the statute that 'upon a roadway of sufficient width a vehicle shall be driven upon the right one-half of the roadway'

(Section 39-1008, 1957 Supplement to NDRC 1943) and that the court further erred in instructing in the words of the statute that in making a left turn:

'after entering the intersection the left turn shall be made so as to leave the intersection to the right of the center line of the roadway being entered.'

(Section 39-1035, 1957 Supplement to NDRC 1943).

The true facts are difficult to ascertain because must of the plaintiff's testimony was given with the aid of and by demonstrating upon a map or diagram which was not admitted in evidence and does not appear in this record. The plaintiff contends, however, that although the collision apparently took place within the intersection, he was turning from the intersection into Second Avenue in the center of the avenue rather than to the right of its center line because of the parked cars on his right and that according to the instructions the jury was told that the position his car then occupied was in violation of the statute. The instructions stated the statute correctly and as we later more specifically point out a violation of the statute is evidence of negligence. It may be that the statute does not allow for what is the...