Moe v. Kettwig

• Decision Date: 03 March 1955
• Docket Number: Nos. 7452,7453,s. 7452
• Citation: 68 N.W.2d 853
• Parties: Elvira MOE, Plaintiff-Respondent, v. P. J. KETTWIG, Defendant-Appellant. Ronald MOE, by Mother and Guardian ad litem, Elvira Moe, Plaintiff-Respondent, v. P. J. KETTWIG, Defendant-Appellant.
• Court: North Dakota Supreme Court

Page 853

68 N.W.2d 853

Elvira MOE, Plaintiff-Respondent, v. P. J. KETTWIG, Defendant-Appellant.

Ronald MOE, by Mother and Guardian ad litem, Elvira Moe, Plaintiff-Respondent, v. P. J. KETTWIG, Defendant-Appellant.

Nos. 7452, 7453.

Supreme Court of North Dakota.

March 3, 1955.

Syllabus by the Court

1. Negligence and contributory negligence are questions of fact for the jury, and it is only when the evidence is without material conflict, and is such that reasonable men must draw the same conclusion therefrom that the question is one of law for the court.

2. Where a verdict has been rendered, the conflict in the evidence must be resolved by the supreme court in favor of, rather than against, the verdict.

3. Contributory negligence is an affirmative defense, and the burden is upon the defendant to prove it.

4. The instructions of the court must be considered in their entirety. Error cannot be predicated on parts thereof where the whole charge is not subject to the objection made to a part thereof. Isolated sentences containing an erroneous statement of the law, but which, when taken with the rest of the charge, cannot have misled the jury, are harmless and do not warrant a reversal. An alleged erroneous statement of the law contained in the trial court's instructions must be considered in connection with its context and the instructions as a whole.

5. Error is never presumed on appeal. It must be affirmatively shown by the record. The burden of showing it is upon the appellant.

6. An appellant who charges that the trial court erred in its instructions to the jury has the burden of showing affirmatively by the record that the instructions challenged operated to his prejudice, and prevented him from having a fair trial.

7. A motion for a new trial on several grounds, one of which is that damages appear to have been given under influence of passion or prejudice, is addressed to the sound judicial discretion of the trial court and the appellate court will not reverse the order of the trial court granting or denying such motion on that ground, unless a manifest abuse of such discretion is shown. In this case it is held, for reasons stated in the opinion, that, under the evidence, a verdict in favor of the plaintiff, Ronald Moe, for ten thousand dollars for personal injuries is not so large as to indicate passion or prejudice on the part of the jury and the trial court did not err in denying the motion on the ground that the verdict to said plaintiff is excessive.

Quentin N. Burdick, Fargo, for defendant-appellant.

Lanier, Lanier & Knox, Fargo, for plaintiff-respondent.

JOHNSON, Judge.

These two cases arise out of a collision between the defendant's automobile and a bicycle being used by Ronald Moe, a minor. The collision took place on September 2, 1952, between the hours of two and three-thirty p.m., on a graveled road just west of the city of Fargo.

Elvira Moe, the mother of Ronald Moe, brought an action against the defendant for damages incurred by her for hospital, doctor and other expenses resulting from the injuries sustained by her son, Ronald Moe, in the accident.

Ronald Moe, by his mother as his guardian ad litem, brought an action for damages for injuries which he sustained in the accident. He and two other boys were riding bicycles in a westerly direction on a public highway, known as Twelfth Avenue North, extending just beyond the corporate limits of the city of Fargo. The defendant was driving in the same direction and overtook the boys, and in attempting to pass them, collided with the bicycle ridden by Ronald Moe, resulting in injuries to him.

The defendant was a resident of Ramsey County, North Dakota, and the two cases were consolidated for trial and tried to a jury in Ramsey County, North Dakota. Separate verdicts were rendered in each case, in favor of the plaintiffs. Judgments were entered on the verdicts. Thereafter the defendant in both cases moved for a judgment notwithstanding the verdict or in the alternative for a new trial. The motions were denied by the trial court. The defendant appeals from the order denying the motion for judgment notwithstanding the verdict or in the alternative for a new trial and from the judgment entered in each case. These cases were argued together in this court. Both actions involve the same facts.

Elvira Moe, in her complaint, alleges that the defendant was negligent; that his negligence resulted in injuries to her minor son, Ronald Moe, and that as a result of said injuries, she incurred hospital, medical and other expenses amounting to several hundred dollars, and prayed for judgment to cover the same.

The defendant answered, admitting that the accident occurred on the 2nd day of September, 1952, in Cass County, North Dakota, between his automobile and a bicycle ridden by Ronald Moe. He alleges that the collision and the resulting damages were 'proximately caused and contributed to by the negligence of Ronald Moe in the operation of his bicycle' and asked for a dismissal of the action.

In the action of Ronald Moe, by his mother as his guardian ad litem, the plaintiff alleges that the defendant was negligent; that by reason of his negligence, and as the proximate cause thereof, the defendant struck Ronald Moe, causing him serious and permanent injuries; that the plaintiff suffered a transverse fracture of the middle right femur causing two inches of overriding; that on the 3rd day of September, 1952, the day after the accident, the fracture was set and a plaster cast applied; that on the 15th day of September, 1952, due to the bad breakage, the fracture had slipped and it was necessary to perform surgery on the leg of the plaintiff and to reduce the fracture and insert a four-screw plate in the leg, and a new plaster cast was applied; that the plaintiff remained in the cast until the 20th day of October, but thereafter he was on crutches for some time; that by reason of the fracture and the operation, the plaintiff suffered and continued to suffer great pain and misery, and prayed for damages for the injuries and the pain and suffering connected therewith.

The defendant answered admitting that the accident took place on the 2nd day of September, 1952, in Cass County, between an automobile owned by him and a bicycle ridden by Ronald Moe; that the collision and the resulting damage were 'proximately caused and contributed to by the negligence of Ronald Moe in the operation of his bicycle', and asked for a dismissal of the action.

The jury rendered a verdict in favor of the plaintiff, Elvira Moe, for the amount of the doctor, hospital and other bills resulting from the injuries to her son, Ronald Moe.

In the action of Ronald Moe, by his mother as his guardian ad litem, the jury rendered a verdict in his favor for ten thousand dollars.

In connection with the motion for judgment notwithstanding the verdict or a new trial, before the trial court, in each case, the defendant set forth specifications and assignments of errors relating to:

1. Insufficiency of the evidence to justify the verdict of the jury.

2. Errors of law occurring at the trial.

3. Excessiveness of the verdict.

The assignments and specifications of error were identical on the motions in both cases, except that the excessiveness of the verdict does not apply in the case of Elvira Moe. On the appeal in these cases, the denial of the defendant's motions for judgment notwithstanding the verdict, or in the alternative, for a new trial, and that the verdicts are against the law, are assigned as additional errors. The assignment of error that the verdicts are against the law is a mere conclusion which adds nothing to the others set forth.

We will first dispose of the assignment of error as to the insufficiency of the evidence to justify the verdicts of the jury. In this connection the defendant and appellant asserts that there is no competent evidence in the record of excessive speed, or that the defendant failed to keep a lookout, and that the only evidence of speed shows that the defendant was driving forty to forty-five miles per hour; that sixty miles is prima facie lawful; that the defendant failed to keep his car under control, and that there is no evidence to show that he did not exercise reasonable care under the circumstances. This assignment of error makes it necessary to set forth the facts somewhat in detail.

On the afternoon of the date set forth, somewhere between the hours of two and three-thirty p. m., three boys, Robert Rugroden, Howard Gensler and Ronald Moe, were riding two bicycles on a straight, level road, which runs west from the city of Fargo. They were proceeding in a westerly direction. Rugroden was propelling himself and his friend, Howard Gensler, who was on the cross bars of Gensler's bicycle. Ronald Moe was riding his brother's bicycle alone. The accident took place about seven tenths of a mile west of the city limits of the city of Fargo. The driving surface of the road was of gravel, and was from twenty-four to twenty-six feet wide. At about the time the boys were riding their bicycles on this road, the defendant was driving his automobile thereon, also in a westerly direction.

Just prior to the time the defendant saw the boys he had passed two trucks, driving in a westerly direction. He noticed the two bicycles with the three boys ahead of him. He claims that he touched and sounded his horn 'about three blocks from the boys.' He says one of the boys was riding in the middle of the road, and that as he touched his horn all three boys turned their heads and looked back.

Robert Rugroden states that when he first noticed the car of the defendant, it was about two blocks away. The boy in the middle of the road later turned out to be Ronald Moe. The defendant claims that the boy in the middle of the road looked around when he was more than a block away. Ronald Moe tried to pass the other two boys on the bicycle being propelled by Rugroden and on...