Rogge v. Weaver
| Decision Date | 06 February 1962 |
| Docket Number | No. 91,91 |
| Citation | 368 P.2d 810 |
| Parties | Gene ROGGE d/b/a Sourdough Freight Lines, Appellant, v. Kenneth E. WEAVER, Howard M. Weaver and Ruth Weaver d/b/a Weaver Brothers; Weaver Bros., Inc., an Oregon corporation; and Harold Adams, Appellees. |
| Court | Alaska Supreme Court |
Charles J. Clasby, of Collins & Clasby, Fairbanks, for appellant.
George B. McNabb, Jr., Fairbanks, for appellees.
Before NESBETT C. J., and DIMOND and AREND, JJ.
Plaintiff's evidence presented a prima facie case aided by a presumption at the time he rested. The trial judge, sitting without a jury, was not persuaded that plaintiff had sustained his burden of proof. The question to be decided is whether involuntary dismissal under Rule 41(b) was properly granted at this point in the trial.
The complaint alleged that on or about March 10, 1952, an agent of defendants was operating a Mack truck towing a full trailer in a southerly direction on the Richardson Highway near mile post 49; that the agent so negligently operated the vehicles as to collide with an International tractor and semi-trailer being operated on behalf of plaintiff in a northerly direction resulting in damage to plaintiff's equipment in the sum of $8494.74 plus loss of use for an extended period to plaintiff's additional damage in the sum of $6000.00. In their answer defendants admitted that their agent was operating a Mack truck and trailer in a southerly direction at the place claimed by plaintiff and admitted that they collided with plaintiff's vehicles. Defendants denied the allegations of negligence and damage. In a first affirmative defense defendants alleged that the highway at the place of collision was covered with ice and snow; that their driver met plaintiff's driver on a curve where the view of the highway was obstructed by a cliff; that their driver was unable to see plaintiff's vehicle until they were approximately 70 feet apart; that in an effort to avoid a collision defendants' driver drove the right wheels of his vehicle against a rock bluff, making all of the highway unoccupied by defendants' equipment available to plaintiff's driver; that because of the snow and ice-covered condition and the narrowness of the highway, the vehicles collided, although defendants' driver at all times operated his vehicle in a careful manner. A second affirmative defense alleged that the collision was caused by the negligence of plaintiff's driver in proceeding at a reckless and dangerous rate of speed causing him to be unable to stop his vehicle upon seeing defendants' vehicle. Defendants did not pray for damages.
At the trial of the action, over eight years after its occurrence, only two witnesses were presented on behalf of the plaintiff. The plaintiff-appellant, Gene Rogge, testified that he arrived at the scene of the accident at approximately 8:30 a. m. on March 11, 1952, accompanied by the witness Walter Farmer, an employee; that he observed his tractor-trailer sitting alongside the right hand side of the road headed north; that the right front wheel of the tractor was suspended over the bank of the road about a foot; the trailer was lined out parallel with the road, but the tractor appeared to have been pushed slightly over the bank of the road; that the left side of the tractor cab was badly damaged and the front housing of the tractor was completely broken off by the rear wheel; that there was a big hole in the front left hand corner of the trailer. Rogge further testified that the trailer was sitting within six inches of the edge of an eight foot embankment on the right hand side of the road, facing north, and that the track marks of the right wheels of the trailer could be seen in the snow for a distance of 60 to 70 feet to the rear of the trailer; that the track marks of the right wheels could still be observed, according to the witness, because they were over in loose snow where the roadway had not been plowed out; but no tracks of the left wheels could be seen because they had travelled in hard-packed snow on the roadway; that the width of the road at the point where plaintiff's vehicle came to rest was approximately 20 feet. Counsel for the parties stipulated that the witness had been at the scene of the accident on numerous prior occasions and was familiar with the curve and the highway. The witness had himself driven similar equipment around the curve in question, was familiar with both pieces of equipment involved in this collision, and testified that in his opinion the vehicles should not have had difficulty in passing at the point where the collision occurred, so far as the road width was concerned. He further testified that in his opinion his tractor did not move over five feet after it was hit. A diagram illustrating all of the witness' testimony was prepared in court as plaintiff's Exhibit 12.
The witness Farmer testified that the tractor and trailer were lined up along the berm of the highway; that the right front wheel of the tractor was off on a berm of snow, with the drivers of the tractor on the roadway. This witness substantiated appellant Rogge's testimony on damage to some extent, adding that the left front wheel of the tractor and one of the steering tie rod ends was broken. He stated that the road was wide enough for two vehicles to pass, in his opinion.
After plaintiff had rested, counsel for defendants announced that he had no intention of calling any witnesses and moved for judgment for the defendants. The motion was granted and before us is the question of the sufficiency of plaintiff's evidence under the rule.
The question is new to this court, but since the rule involved is identical with Federal Rule of Civil Procedure, rule 41(b), 28 U.S.C.A., we do not lack for a helpful source of precedent.
The federal history of that portion of the rule which concerns us here reveals that prior to 1946 a difference of opinion had developed between the circuit courts of appeal as to how the second sentence of Rule 41(b) which reads:
'After the plaintiff has completed the presentation of his evidence, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief.'
should be applied by the court in a nonjury case. 1 The Third and Fourth circuits had held that the function of the trial court was to deny a motion to dismiss at the close of plaintiff's evidence, if the evidence would be, in a jury case, sufficient to take the case to the jury and although the court as trier of the facts would find against the plaintiff on the evidence. 2 The Sixth, Seventh and Ninth circuits had held that the question was not whether there was sufficient proof to take the case to the jury, where trial was before the court only, but that the court, as trier of the facts, should apply its own judgment to the evidence and grant or deny the motion. 3 In 1946 the federal rule was amended by adding what is now the third sentence which reads:
'In an action tried by the court without a jury the court as trier of the facts may then determine them and render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence.'
Since its amendment most of the federal decisions have interpreted the rule as requiring the court to take an unbiased view of all the evidence, giving it such weight as it appears entitled to receive, and decide accordingly. 4 The Third circuit, although it has had occasion to consider the rule twice since its amendment, has specifically stated that it has not as yet passed on the effect of the amendment. 5
In considering how the rule as amended should have been applied in the case before us we are assuming that the motion for involuntary dismissal was made and granted by the court at the conclusion of plaintiff's evidence and not after the defendants had rested. What actually happened at the trial was that at the conclusion of plaintiff's evidence, counsel for defendants stated that he had no 'intention' of calling any witnesses and in the same sentence moved for judgment for the defendants. Counsel for defendants may have felt that presenting his motion in that form gave him a certain psychological advantage but we do not, under the circumstances, consider it sufficient to have been a waiver of the right to present evidence in the event the court had denied the motion after hearing argument from both sides. The procedural point in the trial for waiving the presentation of evidence had not yet arrived and the rule specifically provides that the making of the motion is not a waiver of the right to present evidence. The most that can be attributed to counsel's statement is that it may have reflected his 'intention' as of that time, but that it did not amount to a waiver of a basic right. If the motion had been denied and counsel had then announced that he desired to present evidence after all, we believe the court would not have held him to his gratuitous statement in view of the wording of the rule, the circumstances of the case and in the interests of justice.
The question then is what view of the evidence the judge should have taken at this point in the trial to determine whether, '* * * upon the facts and the law plaintiff has shown no right to relief.' As we have said, the view of the majority of the federal decisions since the amendment is that the trial judge, as trier of the facts, should proceed at once to weigh the evidence and grant the motion if in his opinion the plaintiff has not proved his case by a preponderance of the evidence. This, even though the defense has not rested, and the judge has yet to hear the evidence to be presented on the other side of the issues. We do not believe the rule should be invariably so applied.
Where plaintiff's proof has failed in some aspect the motion should, of course, be...
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