Moser v. Wilhelm, 9816

• Decision Date: 19 December 1980
• Docket Number: No. 9816,9816
• Citation: 300 N.W.2d 840
• Parties: Edna MOSER, Plaintiff and Appellant, v. Jacqueline WILHELM, Defendant, Third Party Plaintiff and Appellee, v. Violet LONG, Third Party Defendant. Civ.
• Court: North Dakota Supreme Court

Page 840

300 N.W.2d 840

Edna MOSER, Plaintiff and Appellant, v. Jacqueline WILHELM, Defendant, Third Party Plaintiff and Appellee, v. Violet LONG, Third Party Defendant.

Civ. No. 9816.

Supreme Court of North Dakota.

Dec. 19, 1980.

Rehearing Denied Jan. 23, 1981.

Chapman & Chapman, Bismarck, for plaintiff and appellant; argued by Daniel J. Chapman, Bismarck.

Zuger & Bucklin, Bismarck, for defendant, third party plaintiff and appellee; argued by William P. Zuger, Bismarck.

ERICKSTAD, Chief Justice.

This is a tort action in which judgment was entered for the plaintiff, Edna Moser, and against the defendant, Jacqueline Wilhelm, in Burleigh County District Court. Moser appeals from the judgment and alleges that there were substantial and prejudicial errors which presumably reduced her award of damages. We affirm the judgment.

Moser was a passenger in an automobile driven by Violet Long. While the Long vehicle was proceeding west on a through street in Bismarck, North Dakota, it was struck on the right front by the Wilhelm automobile which failed to stop for a stop sign while proceeding south. Wilhelm testified she was unfamiliar with Bismarck, that the stop sign was obstructed by branches, and that the Long vehicle seemed to slow down as it approached the intersection on the through street. Wilhelm testified that she believed the Long vehicle was going to yield the right-of-way at which time Wilhelm continued into the intersection and the collision resulted. Long testified that she did not see the Wilhelm vehicle approaching. The testimony concerning obstructions on the northeast corner of the block which could have interfered with Long's view of traffic approaching from the north was unclear.

In the resulting collision, Moser was injured. There was a great deal of evidence regarding Moser's injuries, treatment, and her condition preceding the accident. There was also testimony concerning previous injuries and medical opinions as to the amount of disability allocable to the preexisting conditions and the injury.

The jury determined that Wilhelm was 90 percent negligent and Long was 10 percent negligent and awarded Moser $7,500 in damages. Accordingly, Moser recovered a judgment of $7,500 less $750 (10%) or total of $6,750. Additionally, costs were awarded to Wilhelm and against Moser from the date of a settlement offer of $9,000 from Wilhelm, because it exceeded the judgment awarded Moser. This was pursuant to a motion under Rule 68(a) of the North Dakota Rules of Civil Procedure.

The issues raised by Moser are as follows:

"I.

"Did the Court err in refusing to grant Plaintiff's motion to dismiss from the consideration of the jury the matter of the alleged negligence of Violet Long and did the Court further err in failing to grant a new trial on the issue of the negligence of Violet Long?

"II.

"Was the evidence sufficient to take the matter of the negligence of Violet Long to the jury?

"III.

"Did the Court err in its instruction to the jury relative to the matter of damages, specifically in that it failed to correctly apprise the jury of the law with regard to damages arising from a latent, asymptomatic, non-disabling condition and did the Court further err in failing to grant a new trial on the issue of damages only?

"IV.

"Did the Court err in advising the jury of a 'settlement' between Violet Long and Edna Moser when the amount of such settlement was zero, without advising the jury of the amount of the 'settlement'?

"V.

"Did the Court err in refusing to permit the Plaintiff to show special damages to the jury?

"VI.

"Did the Court err in granting judgment to the Defendant for the 'costs' before the judgment in the main action was entered?

"VII.

"Did the Court err in allowing certain costs to be charged against the Plaintiff?"

I. NEGLIGENCE OF LONG

Moser's issues I. and II. will be considered under this section. Moser alleges that Long was, as a matter of law, not negligent and that the trial court erred in allowing the question to go to the jury. "We have often said in the past that issues of negligence, proximate cause, and contributory negligence ordinarily are questions of fact for the trier of fact unless the evidence is such that reasonable minds can draw but one conclusion ..." Bauer v. Graner, 266 N.W.2d 88, 93 (N.D.1978). Moser advances the theory that Long should be able to proceed on a through street with no obligation to watch for vehicles which may fail to stop or to yield the right-of-way. As we said in Anderson v. Schreiner, 94 N.W.2d 294 (N.D.1959):

"A driver upon an arterial or through highway does not have an exclusive privilege which would require those crossing it to do so at their own risk .... He must look for other vehicles approaching upon an intersecting highway and his lookout must be such that he will see what a person in the exercise of ordinary care would have seen in like circumstances." 94 N.W.2d at 298.

In Anderson, we found the plaintiff to be negligent as a matter of law when the facts indicated that the plaintiff would have had a clear view of the defendant's vehicle for more than 1200 feet before it reached the intersection had he looked. While we determined that the plaintiff was negligent as a matter of law for failing to keep a proper lookout, we held that whether the negligence was a proximate cause of the accident was a question for the jury. We said:

"Therefore it is reasonable to say that if a jury may find that the conduct of an observing driver, who was aware of an approaching car and the possible danger at an intersection, was reasonable in the circumstances, they may also find that the conduct of a non-observing driver, who was unaware of the danger, was reasonable in identical circumstances, even though his ignorance of possible danger was due to his own negligence. The ultimate jury question is whether the conduct of the driver on the arterial highway was reasonable in the light of what he saw or should have seen. Because of his qualified right to rely on his preferred status there is no inescapable inference that a driver upon an arterial highway, who hadn't looked for cars approaching on an intersecting highway would have behaved any differently if he had looked. It follows that whether his negligence in not looking was a proximate cause was a question for the jury." 94 N.W.2d 294, 299.

This court has repeatedly held that a driver on a favored roadway must exercise due care and keep a proper lookout. Kelmis v. Cardinal Petroleum Company, 156 N.W.2d 710, 715 (N.D.1968); Gleson v. Thompson, 154 N.W.2d 780, 786 (N.D.1967); Kuntz v. Stelmachuk, 136 N.W.2d 810, 816 (N.D.1965); Anderson v. Schreiner, supra, 94 N.W.2d at 298. Viewing the evidence in the light most favorable to the verdict, the jury determination that Long was 10 percent negligent was supported by the evidence. Gleson v. Thompson, supra, 154 N.W.2d at 786-87. The evidence revealed that Mrs. Long did not see the Wilhelm vehicle until impact. The jury could have found that she failed to maintain a proper lookout. The evidence also showed that Long had a tendency to slow down at every intersection. Wilhelm stated she believed Long was slowing down to yield right-of-way to her. The jury could have found such action to be a lack of due care under the circumstances of this case in which it appears that Wilhelm was unfamiliar with Bismarck, believed she was on a through street, that there was evidence that the stop sign was partially obstructed, and there was testimony that it was raining and misting. The evidence was sufficient to submit the question of Long's negligence to the jury and it was not error for the court to deny a new trial to Moser on this basis.

II. INSTRUCTIONS ON PREEXISTING CONDITION

Moser alleges that the instructions concerning aggravation of a preexisting condition were confusing and amounted to misdirection. Additionally, she alleges that the trial court's failure to instruct on aggravation of a latent, asymptomatic condition was error and a new trial should be granted as to damages only.

The instructions given were as follows:

"CONDITION NOT CAUSED BY DEFENDANT'S WRONGDOING

"The defendant cannot be held liable for any aggravation of the plaintiff's physical condition due to natural causes.

"If you find that the plaintiff suffers from some unfortunate condition which, although inviting your sympathy, was not proximately caused by any wrongdoing on the defendant's part, you may not assess damages for that condition against the defendant.

"If a person is not in good health or in good physical condition at the time he is subjected to wrongful conduct of another and his subnormal condition is aggravated by the wrongful conduct, the worsening effect is an item of detriment for which damages may be awarded if the injured person is otherwise entitled to recover damages."

Moser contends that the first part of this instruction is confusing and should be determined to be grounds for granting a new trial pursuant to Mousel v. Widicker, 69 N.W.2d 783 (N.D.1955). The first part of this instruction could have been more clear, but a plain reading of the instruction reveals its proper construction. It simply means that the defendant is not liable for any aggravation of the plaintiff's physical condition when such aggravation is due to natural causes and is not due to the defendant's conduct. This is the obvious meaning of the three paragraphs when they are read together. As we said before, instructions must be read as a whole. Vasichek v. Thorsen, 271 N.W.2d 555, 561 (N.D.1978). When read as a whole, there can be no doubt that the instruction permits the plaintiff to recover for an aggravation of his condition resulting from the defendant's actions. This is a correct statement of the law. Kuntz v. Stelmachuk, supra, 136 N.W.2d at 819. Furthermore, while this instruction was being discussed in chambers, Moser's counsel did not request more specific language. In the absence...