Peterson v. Bober

• Decision Date: 19 December 1952
• Docket Number: No. 7329,7329
• Citation: 79 N.D. 300,56 N.W.2d 331
• Parties: PETERSON v. BOBER.
• Court: North Dakota Supreme Court

Page 331

56 N.W.2d 331

79 N.D. 300

PETERSON v. BOBER.

No. 7329.

Supreme Court of North Dakota.

Dec. 19, 1952.

Syllabus by the Court.

1. Questions of negligence and contributory negligence become questions of law when only one conclusion can reasonably be deduced from the facts.

2. A motion for a directed verdict or for a dismissal should not be granted unless the evidence is such as to entitle the moving party to a judgment as a matter of law.

3. The evidence in the instant case is examined and it is held that reasonable men might draw different conclusions from the facts and that the denial of the motions for a directed verdict and for a dismissal of the action on the ground of the insufficiency of the evidence was proper.

4. The contentions of the plaintiff may be given to the jury by stating the substance of the complaint.

5. The order of proof and the range of cross examination are largely within the discretion of the trial court.

6. In the instant case the plaintiff admitted that he remembered nothing of the accident after he was hit. It was not error, however, to allow him to continue to testify as to matters before and since under proper caution to the jury.

7. The evidence in the instant case showed a collision between an automobile and a pedestrian at a regular pedestrian crossing. It was proper for the court to instruct the jury on the pedestrian's right of way.

8. It is not error for the trial court to refuse requested instructions even though proper when the substance thereof is covered in other instructions.

9. An application for a new trial on the ground of newly discovered evidence is addressed to the sound, judicial discretion of the trial court. The appellate court will not interfere unless a clear abuse of discretion is shown.

10. Applications made for a new trial on account of newly discovered evidence should be scanned carefully for a showing of diligence.

11. Whether a motion for a new trial on the ground of newly discovered evidence should be granted or refused involves the inquiry whether substantial justice has been done and whether the proposed evidence is of such character that it will probably change the result upon a retrial.

12. The principal question before the Supreme Court on an appeal from a decision of the trial court on an application for a new trial on the ground of newly discovered evidence is whether the trial court abused its discretion in denying or granting the application.

13. The proposed newly discovered evidence in the case at bar is examined and it is held that the trial court did not abuse its discretion in denying a new trial.

G. O. Brekke and Richard H. McGee, Minot, for plaintiff and respondent.

Quentin N. Burdick, Fargo, for defendant and appellant.

GRIMSON, Judge.

This is an action to recover damages alleged to have been sustained by the plaintiff through the negligence of the defendant in driving his automobile upon and over the plaintiff as he was crossing a street in the City of Minot. The defendant makes general denial except he admits the accident. He pleads contributory negligence and that the plaintiff is not the real party in interest. At the conclusion of the plaintiff's case and again at the conclusion of the entire case the defendant moved for a directed verdict in favor of the defendant and for a dismissal of the action on the ground that the plaintiff had wholly failed to sustain the allegations of his complaint, and on the further ground that the evidence showed the plaintiff had been guilty of contributory negligence. Both motions were denied. The jury rendered a verdict in favor of the plaintiff. Defendant then moved for judgment notwithstanding the verdict or for a new trial. That motion was denied. Thereafter defendant moved for new trial on the ground of newly discovered evidence. That motion was denied. This appeal is from the judgment and from the order denying defendant's motion for judgment notwithstanding the verdict or for a new trial and from the order denying defendant's motion for a new trial upon newly discovered evidence.

The evidence discloses that on a Saturday night, Oct. 21, 1950, about 8 o'clock p. m. the defendant was driving a new Cadillac automobile in a northerly direction on the viaduct over the Great Northern Railway and the Mouse River on Second Street Northwest, in the City of Minot. He had his driving lights turned on low beam for city driving. His car was in good order and with four wheel brakes. 'Whiteway' lights along the viaduct, each of about 600 candle power were burning. One of said lights was on the east side about 8 feet south of the foot of the viaduct and another one about 150 feet further south along the street on the east side of the viaduct. On the west side the lights were placed to alternate with those on the east side. The plaintiff was walking north along the sidewalk on the east side of the driveway on said viaduct. Separating the sidewalk from the driveway is a railing, a thin, iron wall 33 1/2 inches high. At the foot of the viaduct Third Avenue Northwest makes a 'T' intersection with Second St. NW. That is, Third Ave. NW branches off Second St. NW at that point towards the west but does not extend east beyond Second St. NW. One light post was located by the iron railing separating the sidewalk from the driveway within about 8 feet of the foot of the viaduct. It had been raining or misting earlier in the evening and defendant claims the blocks in the pavement on the viaduct were icy. The defendant claims he had stopped his car on the top of the viaduct intending to make a left turn down the west wind of the viaduct on Second Ave. NW. He gave that up on account of the oncoming traffic and continued down the incline of the viaduct some 200 feet. When the plaintiff reached the foot of the viaduct he turned west to his left intending to cross Second St. NW. He claims he looked both north and south on Second St. NW., noticing cars coming from the north but attempted to cross before they came. When he reached almost the center of the street he was hit by the defendant's car, which he had not seen, coming from the south. Defendant admits that he had not seen plaintiff on the sidewalk but claims that he looked ahead and first saw the plaintiff when he came 'stumbling' out from behind the railing on the viaduct about 12 feet ahead of him. He claims he put on the brakes and 'cramped the wheel to the right' but he hit the plaintiff with his left front bumper and fender, knocked him down and injured him severely. He admits that if he could have straightened his car out he would have had room to pass plaintiff on the east with a few inches to spare. He claims he had been going at a speed of 10 to 15 miles an hour and that he got his car stopped within two feet beyond the point of collision. One policeman testified that defendant had claimed water on his windshield had obscured his vision. The police and ambulance came and took the plaintiff to the hospital where it was found that he had sustained traumatic shock, a compound, comminuted fracture of the lower left leg two inches above the ankle joint, lineal skull fracture in the left temple region and had suffered a severe concussion of the brain. There is some conflict in the testimony as to where the plaintiff lay after the collision. The defendant claims plaintiff lay about 10 or 12 feet from the east curb of the street. The police testify that he lay in the center of the street, 15 or 17 feet from the east curb, 'the feet in line with the bottom of the viaduct and the rest of the body upon the viaduct on the slope itself.' There is some testimony that the plaintiff smelled of liquor as he was picked up and that a half pint bottle of whiskey, partially consumed, dropped out of his pocket as he was being taken into the elevator at the hospital.

The appellant claims the trial court erred in denying the motions for a directed verdict and for a dismissal on account of insufficiency of the evidence and because of contributory negligence of the defendant. Before such motion can be granted the evidence must show that the moving party is entitled to judgment upon the merits as a matter of law. Negligence is ordinarily a question of fact and becomes a question of law only when but one conclusion can be drawn from the facts. The questions of negligence and proximate cause become a question of law only when the evidence is such that different minds cannot reasonably draw different conclusions either as to the facts or as to the deductions from the facts. Pachl v. Officer, N.D., 54 N.W.2d 883; State ex rel. Brazerol v. Yellow Cab Co., 62 N.D. 733, 245 N.W. 382 and cases cited. First State Bank v. Kelly, 30 N.D. 84, 98, 152 N.W. 125.

Defendant contends that the only negligence by the defendant alleged in the complaint is excessive speed and that there is no evidence to sustain that allegation. The complaint contains a general allegation that 'said defendant negligently drove, managed, operated and ran his said automobile upon and against and over the plaintiff * * *.' Then follows a statement of plaintiff's injuries and damages after which it is alleged that 'at said time and place defendant so negligently handled, managed, operated and controlled his said automobile, which was then driven by said defendant at an excessive rate of speed and without regard for plaintiff's safety, and so as to cause the injuries above set forth.' Liberally construed that complaint alleges not only excessive speed but negligence in the operation of the automobile without due regard for plaintiff's safety. Under that complaint evidence was introduced and admitted without objection to show the defendant's failure to observe the plaintiff as he walked down the sidewalk of the viaduct which would have been necessary for the due regard to plaintiff's safety. That may be construed to show defendant's failure to keep a proper lookout.

Defendant admits that...