Muhlhauser v. Archie Campbell Const. Co.

• Decision Date: 09 August 1968
• Docket Number: No. 8468,8468
• Parties: H. A. MUHLHAUSER, Plaintiff and Appellant, ARCHIE CAMPBELL CONSTRUCTION CO., ARCHIE CAMPBELL CONSTRUCTION CO., Defendant and Respondent. Civ.
• Court: North Dakota Supreme Court

Page 524

160 N.W.2d 524

H. A. MUHLHAUSER, Plaintiff and Appellant,

ARCHIE CAMPBELL CONSTRUCTION CO.,

ARCHIE CAMPBELL CONSTRUCTION CO., Defendant and Respondent.

Civ. No. 8468.

Supreme Court of North Dakota.

Aug. 9, 1968.

Syllabus by the Court

1. A motion for a new trial on the ground of insufficiency of the evidence to justify the verdict is addressed to the sound judicial discretion of the trial court.

2. A motion for a new trial on the ground of insufficiency of the evidence to justify the verdict invokes the discretion of the trial court, but the discretion is a legal discretion and not an arbitrary one, to be exercised in the interest of justice and where the motion is granted it must appear that the alleged cause or ground had an actual existence.

3. A case once tried and concluded by a verdict should not be reopened and a retrial granted unless a careful examination of the record shows that justice so requires.

4. The violation of a statutory rule relating to safety on the highways is not negligence as a matter of law, but merely evidence of negligence, and in order to constitute evidence of contributory negligence barring recovery there must be a causal connection shown between the negligence and the injury.

5. Unless the negligence of the party who sues proximately contributes to the injury on account of which he seeks to recover it does not constitute contributory negligence so as to bar a recovery.

6. Where the facts from which an inference of negligence and contributory negligence is to be drawn are established without conflict and the inferences drawn by the jury are clearly justified from the law and the evidence in the case, the trial court, in ruling upon a motion for a new trial, is not called upon to exercise any discretion in determining whether the verdict is justified by the evidence and it is an abuse of discretion to grant a new trial on the ground of insufficiency of the evidence to justify the verdict.

Fleck, Smith, Mather, Strutz, Mayer & Stewart; and Pearce, Engebretson, Anderson & Schmidt, Bismarck, for appellant.

Conmy, Conmy, Rosenberg & Lucas, Bismarck, for respondent.

TEIGEN, Chief Justice.

This is an appeal from an order granting a new trial to the defendant. The motion was granted on the ground of insufficiency of the evidence to justify the verdict and that the verdict is against law.

The plaintiff claims damages to its tractor-trailer resulting from a collision with the defendant's cook-car which was being towed by the defendant's gravel truck on U. S. Highway No. 10, about five miles west of Dickinson, North Dakota, on September 14, 1963. The defendant, by counterclaim, asks damages for its cook-car.

The defendant's road construction company was moving to a new jobsite for which it established a new campsite five miles west of Dickinson, North Dakota. The cook-car and gravel truck combination was sixty-two feet, seven inches in length. The cook-car, mounted on wheels, was forty feet, nine inches long and ten feet, one-half inch wide. The towing gravel truck was equipped with conventional sidemounted rearview mirrors and, because of the wider cook-car which it was towing, the defendant's employee could not see behind him unless he turned the truck to one side or the other. The cook-car was not equipped with turn signals, stop lights, or reflectors. The defendant's cook-car-truck combination was being moved in a westerly direction and had reached a point on the highway across from the defendant's new campsite, which was located on the souch side of the highway, when the accident happened. An approach connected the highway with the campsite area thus necessitating a left turn by the defendant's driver to enter the campsite. As he neared the campsite the defendant's driver drove to the right side of the highway to enable him to make a wide turn onto the approach because it was a 'pretty narrow' approach. The driving surface of the blacktopped two-lane highway was about twenty-eight feet wide and it had shoulders upon which one could drive. The shoulders were about six feet wide. The right wheels of the cook-car-truck combination were on the north shoulder of the highway and the left wheels were on the traveled portion, or driving surface, of the highway. According to the testimony of the defendant's driver he had driven with the right wheels on the shoulder for some distance while he slowed his vehicle to about ten miles per hour. It was raining and he had the windshield wipers on his vehicle in operation. The headlights were on and the windows were up and had moisture on them that reduced visibility. After having slowed his vehicle and upon arriving at a point opposite the approach to the campsite, he commenced a left turn across the highway toward the campsite approach without being able to see to the rear and without signaling his intention to turn. When defendant's driver turned his vehicle toward the left, he testified he then had a full clear view in his rearview mirror of the roadway behind. The defendant's driver testified he saw in his rearview mirror the plaintiff's truck-trailer coming a considerable distance behind. The plaintiff's truck was then crossing the centerline and proceeding into the south lane for passing. When he saw the plaintiff's vehicle approaching from the rear the defendant's driver stopped his vehicle at a point within three or four feet from the centerline of the highway and did not leave the north or westbound land of the highway.

The plaintiff's driver was operating the plaintiff's new truck-trailer, which was in good mechanical condition, in a westerly direction approaching the defendant's cook-car and gravel truck combination from the rear. He had been traveling about forty-five miles per hour. The plaintiff's driver testified that he first observed the defendant's vehicle at a distance of approximately six hundered to nine hundered feet. It was then partially pulled over onto the right-hand shoulder of the highway and appeared to be stopped. He testified he turned into the left, or passing lane, a distance of from three hundred to six hundred feet back and flashed his lights. He also slowed to about thirty-five miles per hour. He did not sound his horn. It was early in the morning, about 7:00 a.m., Mountain Standard Time, and the sun had risen but the sky was overcast and it was raining. The plaintiff's driver testified that as he approached the defendant's vehicle he saw that it was moving as it started to turn south (left), across the highway, without signaling. When he saw this he began to brake his vehicle by applying the hand brake which operates on the trailer and turned his vehicle toward the right. The tractor-trailer laid down skid marks thirty-two feet in length. He testified that it appeared to him that if he continued in the left lane, he would hit the defendant's vehicle broadside; and, if he went into the ditch on the left, he would hit the approach to the campsite area. The plaintiff's tractor-trailer jackknifed due to the slippery road but continued to move forward and toward the right or north side of the highway. It went into the right or north ditch. However, before going into the ditch, the plaintiff's truck-trailer struck the right rear corner of the defendant's cook-car. According to the stipulation entered into by the parties at the trial the plaintiff sustained damages in the amount of $14,854.60 and the defendant sustained damages in the amount of $3,366.27.

The jury found for the plaintiff and dismissed the defendant's counterclaim.

The defendant moved for judgment notwithstanding the verdict, or, in the alternative, for a new trial. The trial court denied the motion for judgment notwithstanding the verdict on the ground that it was not timely made. No error is urged on this ruling. It granted the motion for a new trial. The motion is grounded on specifications of insufficiency of the evidence to support the verdict, stated succinctly, as follows:

1. The accident occurred under daylight conditions;

2. The plaintiff's driver failed to give an audible signal of intention to pass as required by statute;

3. The plaintiff's driver failed to have his vehicle under control; and,

4. That over one-half of the traveled portion of the highway was at all times open and available for passing.

It was alleged that the above specifications of insufficiency of the evidence established the verdict rendered was against law since the plaintiff's driver was contributorily negligent as a matter of law.

There were no eyewitnesses to the accident who testified except the respective drivers. A highway patrolman investigated the accident but did not testify at the trial. Pictures were introduced in evidence of the vehicles and the highway which were taken after the accident. There is no conflict in the testimony except on the question of the speed of the plaintiff's truck immediately before the accident. The defendant's driver testified that when he saw plaintiff's vehicle in his rearview mirror he saw black smoke coming from the exhaust pipe, indicating to him that it was being accelerated, and that he estimated its speed at from forty-five to fifty miles per hour. The plaintiff's vehicle is diesel powered and equipped with an upright exhaust pipe. The plaintiff's driver testified he was driving at forty-five miles per hour and that he slowed to about thirty-five miles per hour. However, there is no claim that the highway speed limit was being violated.

The trial court, in its memorandum opinion, states:

'If the (defendant's) vehicle was moving, as contended by plaintiff's driver, it was the duty of the plaintiff to sound his horn as required by statute and his failure to do so would be negligence and contributory negligence, barring a necovery.

'The failure of the plaintiff's driver to observe the position of the defendant's truck can only be attributed to his failure to keep a proper lookout as required by law....