Nichols v. Kluver
| Decision Date | 22 May 1931 |
| Docket Number | 5810 |
| Citation | 237 N.W. 640,61 N.D. 42 |
| Court | North Dakota Supreme Court |
Appeal from the District Court of Ward County, Lowe, J Defendants appeal from the judgment and from an order denying a motion for judgment notwithstanding the verdict or for a new trial.
Affirmed.
McGee & Goss, for appellant.
To support recovery for alleged negligence, a preponderance of the evidence must establish that the plaintiff's injury was occasioned by a cause for which the defendant is responsible. 45 C.J. 1267.
If the evidence is such that intelligent men may fairly differ in their conclusions thereon upon any of the essential facts of the case, it is error to withdraw such evidence from the consideration of the jury. Cameron v. Great Northern R Co. 8 N.D. 124, 77 N.W. 1016.
Witnesses must state facts and not draw conclusions or give opinions. It is the duty of the jury or court to draw conclusions from the evidence and form opinions upon facts proved. 1 Elliott Ev. para. 679; McKelvey, Ev. 318, note 3.
A nonexpert witness may testify as to the general health, strength, or bodily vigor, and also as to his change in physical condition from time to time. This rule admits only such facts as have come under the observation of the witness. 11 R.C.L. 606, para. 31; Ann. Cas. 1916C, 1097; R.C.L. Supp. 1283.
Only a physician and surgeon, properly qualified, can testify to the effect, extent, etc., of an injury, and the period for recovery, and a nonexpert witness is incompetent to testify thereto. 22 C.J. 543 and 545; Jones, Ev. 2d ed. paras. 1242, 1245; Lewis v. Bell (Mich.) 66 N.W. 1091; State v. Ogden (Or.) 65 P. 49; Dushance v. Benedict (U.S.) 30 L. ed. 810.
Lay witnesses are precluded from giving their opinions upon specific matters such as the cause of a physical condition, or a particular occurrence or result. 22 C.J. 493; Sutter v. Kansas City (Mo.) 119 S.W. 1014; Madeen v. Saylor Coal Co. (Iowa) 111 N.W. 57; Marx v. Ontario Beach Hotel Co. (N.Y.) 105 N.E. 97; Lounsbury v. Davis, 102 N.W. 941.
Testimony as to permanence of injuries is objectionable, except by expert witnesses. Atlantic Street R. Co. v. Walker (Ga.) 21 S.E. 48.
It is unquestionably incumbent on a pedestrian, crossing a street at other than a regular street intersection to use a greater degree of care than when crossing at a proper pedestrian crossing. Livingston v. Dole (Iowa) 167 N.W. 639; Harder v. Mathews, 121 P. 923; 2 Blashfield, Auto. Law, pp. 1023 et seq.; Moss v. Boyington Co. (Cal.) 186 P. 631; Todd v. Lewis (Wash.) 158 P. 1006.
L. J. Palda, Jr., Robert W. Palda and C. E. Brace for respondent.
Where contributory negligence of the plaintiff is relied upon to defeat the right of a pedestrian to recover on account of the negligence to the driver of a truck, such contributory negligence must be found to have been a proximate cause of his injury. Clark v. Feldman, 57 N.D. 741, 224 N.W. 167.
Contributory negligence is a matter of defense, and should be pleaded. Carr v. Mpls., St. P. & S. Ste. M.R. Co. 16 N.D. 217, 112 N.W. 972.
Plaintiff brought this action to recover damages for personal injuries. He was awarded a verdict in the sum of $ 3,000.00. The defendant has appealed from the judgment and from the order denying his motion for judgment notwithstanding the verdict or for a new trial. The following material facts are not in dispute: On the evening of December 21, 1928, between 5 and 6 o'clock, the defendant Christopher, an employee of the defendant Kluver, while riding a motorcycle on one of the streets of the city of Minot, collided with the plaintiff Nichols and knocked him down with the result that Nichols sustained certain injuries, among others a broken leg. As a result of the injuries then sustained the plaintiff was confined to his house for a considerable period of time and incurred or expended for medical services and treatment a sum of to exceed $ 135.00. As regards the other facts there is more or less conflict or dispute in the evidence.
The plaintiff testified that the accident occurred about 5:30 P.M., while the defendant Christopher testified that it occurred about twenty minutes earlier. The plaintiff Nichols testified that it was dark at the time of the collision. His version of the accident is substantially as follows: Nichols parked his car or truck on the opposite side of the street from a place known as the Swiss Tire Shop and he then took a tire in there for repair. After the tire had been repaired he came out of the tire shop to the curb and stood there about six feet from the curb and waited while two cars passed, one going in each direction. After the cars had passed he looked both ways to see whether there were any cars approaching. Seeing none, he stooped to pick up his tire to carry it across the street and had just picked it up when he was knocked over. He further testified that thereafter he knew nothing about what happened until the next day when he found himself in bed. He testified positively that he looked in both directions after the last car passed before attempting to cross the street but could not see any vehicle coming and could have seen one if one was coming. He testified that a car was standing on the east side of the street, north of where he attempted to cross. He further testified that he heard no blowing of the horn or other warning; and according to his testimony the vehicle that struck him had no lights. His testimony further shows that when he regained consciousness, and from then on, he had pains in his leg, shoulder and back and was in bed for four weeks after the accident. After he got out of bed he was around on crutches and continued to have soreness through his stomach, back and shoulders and passed blood from the bowels. On April 3, 1929 he had an operation at the Trinity Hospital and since then has passed no blood. He testified that since the accident he has worked, at different times, for two different concerns. He further testified that the street on which the accident occurred is a through, or stop street, where all traffic crossing it is required to stop and all vehicles thereon have the right of way over traffic across it. He further testified that there was only one car parked on the east side of the street at the time he attempted to cross, such car being about fifty feet north of the Swiss Tire Shop. According to his testimony he was about six feet from the curb at the time he was struck and had been standing in that position watching the traffic until the street appeared to be clear. He further testified that the different cars that passed had lights.
The defendant Christopher testified that at the time of the accident he was coming down the street going north, about forty feet behind a car going in the same direction; that he did not see a car coming from the north until it passed and that this car obstructed his view; that there were other cars going in the same direction so that there were four cars in a line and that he thereupon moved to the right side of the street as far as he could and just as he did so he looked up and observed that he was only about five feet from Nichols; that Nichols at that time was behind the car parked in front of the Swiss Tire Shop; that he realized he hit something but thought it was the tire and that he saw the tire; that at the time Nichols was about a foot and a half or two feet from the parked car; that at the time the lights on the motorcycle were burning and the brakes working; that when he saw Nichols he (Christopher) turned out toward the center of the street as sharply as possible; that his side-car lifted and that he knew if he turned more sharply it would upset; that he stopped in about twenty feet and saw Nichols getting up and figured that he was all right and so did not stop. The evidence further shows that Mr. Swiss, the owner of the Swiss Tire Shop, came out shortly after the accident had occurred and noticed that Nichols had been injured; that he (Nichols) said something about a motorcycle and that Swiss thereafter followed and made a search for the motorcycle and finally located it; that he had a talk with Christopher at the time.
On this appeal appellant has specified some eighty-nine errors.
The first assignments are predicated upon rulings relating to the cross-examination of the defendant Christopher under the statute. Upon the record presented on this appeal the assignments are obviously without merit. Christopher was a party defendant. The cross-examination was restricted by the trial court within an unusually narrow scope. If there was any error in the rulings on cross-examination it was error against the plaintiff rather than against the...
To continue reading
Request your trial