Nitschke v. Barnick

• Decision Date: 27 February 1975
• Docket Number: No. 9039,9039
• Citation: 226 N.W.2d 785
• Parties: Shirley NITSCHKE et al., Plaintiffs-Appellees, v. Loyd BARNICK, Defendant-Appellant. Civ.
• Court: North Dakota Supreme Court

Page 785

226 N.W.2d 785

Shirley NITSCHKE et al., Plaintiffs-Appellees, v. Loyd BARNICK, Defendant-Appellant.

Civ. No. 9039.

Supreme Court of North Dakota.

Feb. 27, 1975.

Syllabus by the Court

1. The findings of fact of the court, trying the case without a jury, are binding upon appeal unless clearly erroneous. Rule 52(a), North Dakota Rules of Civil Procedure.

2. In a damage action, evidence of a violation of a statutory rule of the road is evidence of negligence.

3. A finding by the trier of facts that a violation of a rule of the road did not occur, will not be disturbed on appeal if there is substantial evidence in the record supporting such finding.

4. The absence of valuation testimony on items of pain and suffering, services lost, or loss of consortium will not warrant the setting aside of awards for such items unless it has been shown that such awards were excessive and the applicable findings clearly erroneous.

Ottmar, Nething & Pope, Jamestown, for defendant-appellant.

Kenneth M. Moran, Jamestown, for plaintiffs-appellees.

PEDERSON, Judge.

CASE SUMMARY

This is an action for damages arising out of an automobile collision which occurred at about 9 p.m. on January 11, 1973, on U.S. Highway 281 south of Jamestown. The Stutsman County District Court, without a jury, found that defendant was negligent and that such negligence was the proximate cause of the collision. The court found that the plaintiff was not negligent. Judgment was entered awarding damages to the plaintiffs for their injuries resulting from the collision and for loss of services and loss of consortium, and the defendant appealed.

Judgment is affirmed.

FACTS

The plaintiff-driver, Shirley Nitschke, was driving south from Jamestown, intending to turn east into a private driveway about four miles south of Jamestown. Shirley's passengers were her two sons, plaintiffs Landon Nitschke, 2, and Lance Nitschke, 10, and her daughter, Lynne, 15. Plaintiff Lawrence Nitschke is the husband of Shirley.

Preparatory to making this left turn, Shirley commenced applying her brakes some 900 feet north of the private driveway, and testified that she engaged the left turn signal at the same time. She looked into the rearview mirror and observed headlights some distance back.

She testified that before starting any left turn movement of her car, it was struck forcefully from the rear by defendant Loyd Barnick's car. Shirley and her two sons, Landon and Lance, were injured.

Barnick admits his negligence, but claims that Shirley was making a left turn toward the driveway and failed to yield to him as required by Section 39--10--25, N.D.C.C., and thus was contributorily negligent as a matter of law.

Shirley was awarded $9,250 for pain and suffering and loss of earnings.

Landon was awarded $800 for pain and suffering.

Lance was awarded $800 for pain and suffering (to be corrected to $500 as agreed by plaintiffs).

Lawrence was awarded $2,850 for medical expenses, incurred and to be incurred, and for loss of services and consortium.

Barnick claims that these awards are excessive in view of the actual injuries sustained and actual damages proved.

ISSUES

Questions to be decided here are:

I. Was the plaintiff guilty of contributory negligence as a matter of law under the facts of this case?

II. Were the damages awarded excessive in view of the injuries sustained?

DECISION

In all actions tried upon the facts without a jury, we are restricted in our review by the provisions in Rule 52(a) of the North Dakota Rules of Civil Procedure.

'The findings of fact of the court, trying the case without a jury, are binding upon us unless clearly erroneous.' Dobler v. Malloy, 214 N.W.2d 510, 514 (N.D.1973).

I.

With regard to the question of contributory negligence, the court's findings of fact are supported in its oral memorandum opinion in the following language:

'She arrived at a point which was her checkpoint to the north of their approach, some 900 feet or so and she stated that she, as was her custom, applied her brakes to slow down preparatory to making a turn, at the same time activating the left-turn signal. Mr. Barnick, the defendant, says he did not see the signal. Mrs. Nitschke says that she did signal. I feel that she is telling the truth in this and that she did in fact signal. She impresses me as being a rather prudent and careful woman and one who would be even more careful when she is driving the car with her children.

'She says that she saw the lights of an approaching car from the north in her rear view mirror. She checked--as far as I remember the testimony--only once, and Mr. Nething stresses this. There is a suggestion that there may be some negligence on her part from this fact, and taking into consideration 39--10--25, there may be a suggestion here because of that that she exercised poor judgment. Assuming that any oncoming vehicle could conceivably be going 60 miles an hour, which would be 90 feet per second, and approximately a little over 10 seconds 921 feet could be traversed--there is where the judgment factor comes in. Was she justified in making the turn into her driveway knowing that that car was behind her and knowing in order to make a turn she was going to have to slow down and taking these factors into consideration that she wouldn't have very much time to make that turn. This is a little disturbing fact but, on the other hand, we have her testimony that she was far enough back, she hadn't made her turn yet, and we have Mr. Barnick's testimony that the wheels of her car on the left side were on or close to the centerling; he didn't say they were over on the other side, and I must point out the fact remains that he had been drinking, and he admits two beers and three whiskey cokes, and this was not too far in the past with reference to the time that the accident occurred, and we are confronted with the fact that he must have or he should have seen this car ahead of him and he could have seen the turn signal but, even if he didn't, he performed very incorrectly in violating this particular section which says that before one passes one must give an audible signal. I don't think he said that he did and I am sure she said she heard none. Now assuming that she is wrong and incorrect and mistaken when she says she activated her signal, if she did he would have seen it, and if she didn't the fact remains that there was no reason for running into the rear end of the car which she was driving, so I am going to say that I believe there is no question that the majority of the negligence is, of course, on the side of the defendant. I haven't yet determined whether she was somewhat negligent. I will make that determination and--

'MR. MORAN: The general consensus at the seminar I attended was that comparative negligence did not apply to actions which occurred before July 1st.

'THE COURT: What I am trying to say is I believe there is a right to recover here and I lean that way and the final decision on that will be made at 11:00 o'clock on Monday morning, and if I resolve it in that direction then I will have some figures to give you as to the amount of damages.'

When the court reconvened on the following Monday, the court continued its memorandum opinion as follows:

'In the case of Shirley Nitschke, et al., vs. Loyd Barnick, I have looked over my notes again, and also the exhibits, including the pictures and the diagram, and I have determined that Mrs. Nitschke was not negligent, she had not made her turn to the point where she was blocking the highway, she was on her own side of the road, and the only conclusion we can come to from what we have here is that the car she was driving was struck very forcibly in the rear, and she was making a signal and she was not negligent and Mr. Barnick was negligent. She is entitled to recover, and the two boys are entitled to recover, and Mr. Nitschke is also entitled to recover.'

In the findings of fact, the court said:

'That said collision was caused by the negligence of Defendant who was intoxicated, who failed to keep a proper lookout, failed to keep his vehicle under proper control, and who otherwise violated rules of caution and safety and the rules of the road; that Plaintiff Shirley Nitschke was not negligent in operating her motor vehicle.'

Barnick argues that this is reversible error and that, as a matter of law, Shirley was negligent, per se, because she violated the requirements of Section 39--10--25, N.D.C.C., and that the failure of Shirley to comply with this statute was the proximate cause of the accident.

Barnick cites Muhlhauser v. Archie Campbell Construction Co., 160 N.W.2d 524, 528 (N.D.1968), in support of his position. In nonspecific terms, Muhlhauser stands for the proposition that a determination by the trier of facts (the jury in that case and the trial court in this case) will not be set aside on a review of that determination (by the trial court, under Rule 59, in Muhlhauser, and by the Supreme Court, under Rule 52(a), in this case) unless there is a clear and convincing reason to do so. The majority, in Muhlhauser, found this rule more impelling than the general rule that the granting of a new trial should not be as readily disturbed as the denial of a new trial. From our analysis we conclude that Muhlhauser has no application in this case.

The record here contains substantial evidence, as set out later, supporting the findings that Shirley was not negligent. The trial court's memorandum opinion says that she was not making a left turn when she was struck. Section 39--10--25, N.D.C.C., would apply only if Shirley was making a left turn and if such was the proximate cause of the damages.

Section 39--10--25, N.D.C.C., reads:

'The driver of a vehicle about to enter or cross a highway from a private road or driveway shall yield the right of way to all vehicles approaching on said highway and a vehicle turning left to enter a private road or driveway shall yield the...