Perleberg v. General Tire & Rubber Co., 9002

• Decision Date: 29 August 1974
• Docket Number: No. 9002,9002
• Citation: 221 N.W.2d 729
• Parties: Floyd PERLEBERG et al., Plaintiffs and Appellees, v. GENERAL TIRE AND RUBBER COMPANY, a corporation, and Raymond Kranick, Defendants and Appellants. Civ.
• Court: North Dakota Supreme Court

Page 729

221 N.W.2d 729

Floyd PERLEBERG et al., Plaintiffs and Appellees, v. GENERAL TIRE AND RUBBER COMPANY, a corporation, and Raymond Kranick, Defendants and Appellants.

Civ. No. 9002.

Supreme Court of North Dakota.

Aug. 29, 1974.

Syllabus by the Court

1. Instructions to a jury must be considered in their entirety. If the effect of the whole is to outline the issues in the case fairly and correctly, an isolated improper statement contained therein will not be considered prejudicial error.

2. In a case is which prejudicial error in an instruction is charged, this court will consider the evidence before the jury, as well as the specific language used by the court, to determine whether the instruction complained of was in fact prejudicial.

3. For reasons stated in the opinion, in an action by parents to recover damages for the wrongful death of a minor child, it was prejudicial error for the trial court to refuse to give a requested instruction of contributory negligence of the supervising parent of the child.

4. For reasons stated in the opinion, it was not error in an action by parents to recover damages for the wrongful death of a minor child for the trial court to give a requested instruction that pecuniary loss need not be established by proof in dollars and cents and that a substantial loss will be presumed.

Traynor & Rutten, Devils Lake, for defendants and appellants.

Robert C. Heinley, Carrington, and Kenneth M. Moran, Jamestown, for plaintiffs and appellees.

PAULSON, Judge.

Floyd Perleberg and Barbara L. Perleberg, individually, and Floyd Perleberg, as administrator of the Estate of David Perleberg, Deceased (hereinafter 'the Perlebergs'), brought this action against the defendants, General Tire and Rubber Company, a corporation, and Raymond Kranick (hereinafter General Tire and Mr. Kranick) to recover damages for the wrongful death of their son, David Perleberg, who was fatally injured by the truck driven by Mr. Kranick, which truck was owned by General Tire.

General Tire and Mr. Kranick filed an answer asserting that the Perlebergs assumed the risk by permitting their 2-year-old child to be unattended while playing; that the Perlebergs were negligent in leaving their child uncontrolled and unsupervised; and that such negligence was the proximate cause of any damage to the Perlebergs and, accordingly, that the Perlebergs were barred from recovering; and that the Perlebergs were contributorily negligent in that the injuries to their son David resulting in his death were proximately caused or were contributed to by the negligence of Floyd and Barbara L. Perleberg, and not by the negligence of General Tire and Mr. Kranick.

The case was tried to a jury and, after the Perlebergs rested, the defendants moved for a directed verdict of dismissal of the action and, again, at the close of the trial, moved for a directed verdict and for dismissal. These motions were resisted by the Perlebergs and the trial court denied the same. The case was then submitted to the jury and a verdict was returned in favor of the Perlebergs for medical, ambulance, and burial expenses, in the sum of $2,171.77; and for general damages in the sum of $65,200.00, or a total of $67,371.77.

General Tire and Mr. Kranick made a motion for judgment notwithstanding the verdict or in the alternative for a new trial, which motion was denied. General Tire and Mr. Kranick have appealed from the judgment and from the order denying the motion for judgment notwithstanding the verdict or in the alternative for a new trial.

The record reveals that on the 25th day of May, 1971, Floyd Perleberg was residing with his wife Barbara and their children in the city of New Rockford, Eddy County, North Dakota. Floyd Perleberg, at the time, was 35 years of age, and his wife Barbara was 27 years of age. Their three children ranged in age from 5, 4, and 2 years, respectively. The Perleberg family was residing in a trailer house located approximately 100 feet from a small warehouse owned by the Archie Campbell Construction Company. There were several other house trailers located near the Perleberg trailer house. The warehouse was a storage building for tires and other miscellaneous construction equipment.

Mr. Kranick, on the day of the accident, arrived at the warehouse about 1 o'clock in the afternoon. He was employed by the General Tire and Rubber Company and was driving a truck owned by such company. Prior to the accident, on May 25, 1971, Mr. Kranick had spent about two hours loading tires from the warehouse onto the truck. At approximately 3 p.m. on May 25, David Perleberg, the 2-year-old son of Floyd and Barbara L. Perleberg, was playing with several other young neighbor children near the warehouse. The warehouse was located across the street from the Archie Campbell Construction Company headquarters building. There were no specified areas of traffic or designated roads in the area where the trailer houses and the warehouse were located. During the time Mr. Kranick was loading the truck, he noticed several small children playing near the rear of his truck and, prior to his leaving the warehouse area, he told them to move. Mr. Kranick then entered the truck cab without first observing the area in the front of his vehicle, which are was not within his view from the truck cab in which he was sitting. He started the motor, released the brake, and drove slowly forward a few feet. As he was driving forward, Mr. Kranick heard a scream, stopped the truck, left the cab, checked the rear of the truck, and then discovered the Perleberg boy under the left front truck tire. Mr. Kranick immediately entered the truck cab and backed the truck a short distance. David was taken to the hospital at New Rockford and was them transferred to a hospital at Jamestown. Later that day David was transferred to a Fargo hospital, where he died on the following day, May 26, 1971, as the result of the injuries he sustained.

While there are four issues which have been presented to the court for consideration, our primary concern is whether the trial court erred in failing to instruct the jury on the issue of the contributory negligence of Floyd Perleberg and Barbara L. Perleberg.

It is conceded by General Tire and Mr. Kranick that Floyd Perleberg was not contributorily negligent, because, at the time of the accident, he was pursuing his employment on a farm, and obviously was not supervising his children during the hours of such employment. Accordingly, it is necessary to determine whether Barbara L. Perleberg's activities constituted contributory negligence. General Tire and Mr. Kranick contend that Barbara was contributorily negligent because: the family resided in a trailer house located about 100 feet from the warehouse, the Perlebergs had resided there for five years, and Barbara had never instructed her children not to play in the warehouse area; that during the period of time immediately preceding the accident, she was hanging clothes on the clothesline outside of her trailer home and, from her location in the clothesline area, it would have been possible for her to observe the front of the truck owned by General Tire; that Barbara was not supervising or watching her children while they were playing near the warehouse; that the warehouse was owned by the Archie Campbell Construction Company and Barbara had knowledge that the construction company stored heavy equipment items in such warehouse.

This court has held numerous times that questions of contributory negligence are questions of fact for the jury to determine unless the evidence is such that reasonable minds can draw but one conclusion. Willert v. Nielsen, 146 N.W.2d 26 (N.D.1966); Lindenberg v. Folson, 138 N.W.2d 573 (N.D.1965); Vogel v. Bertsch, 130 N.W.2d 220 (N.D.1964); and Sahli v. Fuehrer, 127 N.W.2d 900 (N.D.1964).

A perusal of the record reveals that Barbara L. Perleberg did testify as to the facts set forth by General Tire and Mr. Kranick. Mr. Kranick further testified that the warehouse owned by the Archie Campbell Construction Company was used to store tires and other construction equipment; that he had personally loaded and unloaded tires at the warehouse a number of times; that during the several hours when he had been loading the tires on the day of the accident, children were playing around and hanging onto the rear platform of his vehicle, and that he had chased the children away from the...