Nokken v. Avery Mfg. Co.

• Decision Date: 03 December 1902
• Citation: 11 N.D. 399,92 N.W. 487
• Parties: NOKKEN v. AVERY MFG. CO.
• Court: North Dakota Supreme Court

11 N.D. 399

92 N.W. 487

NOKKEN

v.AVERY MFG. CO.

Supreme Court of North Dakota.

Dec. 3, 1902.

Syllabus by the Court.

1. It is held, in an action to recover damages caused by the alleged negligent blowing of a whistle on defendant's threshing engine, that the jury did not act capriciously or arbitrarily in rejecting the testimony of the defendant's engineer, who testified that he did not blow the whistle, in view of other evidence in the case tending to contradict him, and that the court did not err in submitting the question of the defendant's negligence to the jury.

2. In an action to recover damages for injuries caused by a single act of negligence, it is not necessary to allege in the complaint the separate items of damage resulting therefrom. It is sufficient to allege a general sum, without specifying the particular items.

3. The sufficiency of the evidence to sustain an item of damage sought to be recovered is not properly raised by a motion to strike out the evidence as to such item, and it is not error to refuse to strike out the evidence when it is competent. The test of the sufficiency of the evidence to sustain an item of damage should be presented to the court by a request that the jury be directed to disregard the particular item of damage. Kolka v. Jones, 6 N. D. 461, 71 N. W. 558, 66 Am. St. Rep. 615, followed.

4. It is held that the trial court did not err in denying defendant's motion for a new trial.

Appeal from district court, Cass county; Charles A. Pollock, Judge.

Action by O. P. Nokken against the Avery Manufacturing Company. Judgment for plaintiff, and defendant appeals. Affirmed.Turner & Lee, for appellant. Morrill & Engerud, for respondent.

YOUNG, J.

This is an action to recover damages for injuries to plaintiff's person and property alleged to have been caused by defendant's negligence. The jury returned a verdict in favor of plaintiff in the sum of $600. The defendant made a motion for new trial, based upon alleged errors of law occurring at the trial, and upon the alleged insufficiency of the evidence to sustain the verdict. Defendant has appealed from the order overruling the motion.

Plaintiff, in stating his cause of action, alleges that for a number of years the defendant has been engaged in handling farm and other machinery in the city of Fargo, and that its place of business is on the south side of Northern Pacific avenue, in said city; that on the 16th day of July, 1901, the defendant had a threshing machine and engine in operation at its said place of business near said avenue; that it operated the same in a careless and negligent manner, making a great and unnecessary noise in letting off steam, and blowing the whistle of the engine in such a manner as was calculated to frighten horses of ordinary gentleness; that the street was partially torn up at a point opposite defendant's place of business, so that it was necessary for teams to pass close to the threshing machine and engine; “that on said date, and while said defendant was running and operating said threshing machine and engine in a careless and negligent manner, as aforesaid, plaintiff, without any knowledge on his part of what defendant was doing, drove along said Northern Pacific avenue with two horses properly harnessed to a wagon, said horses both being of ordinary gentleness and road-worthiness; that as plaintiff, in driving as aforesaid, reached a point on said avenue directly opposite defendant's said engine and threshing machine, the defendant negligently and carelessly caused the whistle to be blown with a loud and unnecessary noise, causing plaintiff's horses to become frightened and unmanageable, and plaintiff was thereby violently thrown from the wagon, and in their fright said horses were badly injured and the wagon broken; that, by reason of being thrown from the wagon as aforesaid, plaintiff was badly injured, and caused to suffer great pain and anguish, and was made sick, sore, and lame, and permanently injured in his body, head, hands, legs, and nervous system, and was thereby rendered unable to attend to his business for a period of over two months, and was put to great expense for medical attendance and nurse hire; that by reason thereof the plaintiff has been damaged in the sum of two thousand dollars.”

With the exceptions to be hereafter noted, it is not claimed on this appeal that the facts thus alleged are not sustained by the evidence. For the purposes of this appeal, they may therefore be taken as true, except in those particulars which we will hereafter consider. It is contended in the first place that “there is no evidence tending to connect the defendant with the blowing of the whistle.” Defendant moved for a directed verdict on this ground, and the same was overruled. This is assigned as error. In our opinion, error was not committed in this ruling. The fact is not controverted that it was the whistling of defendant's engine which frightened plaintiff's team, and caused the injuries to his person and property for which he sues. It is also an undisputed fact in the case that the engine was steamed up on the day in question under the direction of the defendant. I. J. Haug, the defendant's managing agent at Fargo, testified that there was an excursion on that day to the Agricultural College; that his company had the engine fired up, and were operating it about 16 feet from the sidewalk. He also testified that a number of other dealers in threshing machines had rigs steamed up and running in front of their places of business for exhibition purposes. He says: “I think these excursions had been coming to Fargo for some time before that, and there had been a fire festival, and all these different companies had their engines steamed up at the time of the fire festival; and during the fire festival we all tried to whistle the most we could, because the one that whistled the most drew the crowd, and we had our machine on inspection, and, as our machine is new in North Dakota, we wanted to draw attention to it. On the day of the accident I do not know who blew the whistle. A man named Peter Sandstrom was our engineer that day. I did not pay any attention to the whistle. The first I knew of the accident was when I was called out there, and the chief of police told me they were blowing the whistle, and for me to stop them.” Anfin Monson, a witness for plaintiff, testified that he saw the plaintiff's team run away, and heard the whistle blow, “and heard it blow at different times before that.” Swan Johnson, a policeman, a witness for plaintiff, testified that he did not see plaintiff at the time of the runaway, but did see him after the injury. He says: “I do not remember how long the defendant operated this...