Spalding v. Loyland, 8180

• Decision Date: 31 December 1964
• Docket Number: No. 8180,8180
• Citation: 132 N.W.2d 914
• Parties: James B. SPALDING, Jr., Plaintiff and Appellant, v. Orlando LOYLAND, Defendant and Respondent.
• Court: North Dakota Supreme Court

Page 914

132 N.W.2d 914

James B. SPALDING, Jr., Plaintiff and Appellant, v. Orlando LOYLAND, Defendant and Respondent.

No. 8180.

Supreme Court of North Dakota.

Dec. 31, 1964.

Rehearing Denied March 2, 1965.

Syllabus by the Court

1. Questions of contributory negligence and proximate cause are questions of fact for the jury, unless the evidence is such that reasonable minds can draw but one conclusion therefrom, when it then becomes a question of law for the court.

2. Where there is a sharp conflict in the evidence relating to any real issue of fact, the verdict of the jury will not be disturbed on appeal.

3. In determining the sufficiency of the evidence to sustain the verdict, the evidence must be viewed in the light most favorable to the verdict.

4. The credibility of the witnesses and the weight to be given to their testimony are questions of fact for the jury to determine.

5. In considering the specification that the verdict of the jury is contrary to the evidence, the court will assume the truth of the version of the evidence that tends to support the verdict.

6. An instruction complained of, when standing alone or considered by itself, might be erroneous, but it is a salutory rule in this State that, although an instruction standing alone may be insufficient or erroneous, it must be considered in connection with the remainder of the charge; and, if the whole charge taken together correctly advises the jury as to the law, the error, if any, is thereby cured.

7. An instruction on contributory negligence, using the words 'though slight' or a similar phrase in referring to the degree which any negligence of a party cooperates with or contributes to the negligence of another in causing the injuries complained of, under the circumstances of this case, is not error but is disapproved.

8. The inclusion in an instruction of portions of statutes which could have no application to the evidence, and which would tend to mislead and confuse the jury, is error.

9. Where there is probative evidence of permanent injury, the jury should be instructed by the trial court that impairment of earning capacity is an item of general damages which permits recovery for loss or diminution of power to earn in the future and is based on such factors as age, life expectancy, health, habits, occupation, talents, skill, experience, training, and industry, and it is within the province of the jury to weigh all these elements and to arrive at a proper monetary value of any such loss.

10. Where there is probative evidence of permanent injury, the failure of the trial court to give a requested instruction, if proper, pertaining to recovery for loss or diminution of earning power as an item of general damages, or another proper instruction concerning the same subject matter, is error.

O'Grady & Edwards, Grand Forks, for plaintiff and appellant.

Letnes, Hansen & Murray, Grand Forks, for defendant and respondent.

W. C. LYNCH, District Judge.

This appeal is from a judgment entered in favor of the defendant and against the plaintiff an the 23d day of January, 1963, and from the trial court's order denying the plaintiff's motion for judgment notwithstanding the verdict or, in the alternative, for a new trial.

The case was heard by the Supreme Court of the State of North Dakota on September 1, 1964.

The record reveals that the defendant testified, in substance, on cross-examination that, between 10:30 and 11 a. m. the morning of March 14, 1962, he was driving a half-ton pickup in a westerly direction on U. S. Highway No. 2; that it was a somewhat cloudy day with fair visibility; that there is a ravine approximately three miles east of what is known as 'Larimore Corner' on U. S. Highway No. 2, and just east of this ravine there were patches of ice and snow on the blacktop road. At a point about a mile and a half from this ravine, the vehicle driven by the plaintiff passed the defendant's vehicle and pulled back onto the right side of the road. The plaintiff's vehicle continued ahead of the defendant until it disappeared into the ravine, at which time the defendant was approximately fifty to sixty rods behind the plaintiff's vehicle and the defendant was driving at approximately thirty to thirty-five miles an hour. The defendant judged the distance from the top of the hill to the bottom of the ravine to be about fifteen to twenty rods. The defendant testified that a side road intersected Highway No. 2 about ten rods from the top of the ravine and that, as he reached the top of the ravine, he observed the plaintiff's vehicle about halfway down the hill, about one hundred feet from the crossroad. He also observed a road grader and another vehicle proceeding west, both of these vehicles being on the north, or right-hand, side of the road with the grader, or snowplow, in front and another vehicle following, the snowplow being at a point about halfway between the side road and the bottom of the ravine. He also observed the plaintiff's vehicle behid the other vehicle which was, in turn, following the snowplow. Mr. Loyland, the defendant testified that, as he drove over the crest of the hill coming into the ravine, the condition of the road was rather icy and rough, with ice being on both sides of the road but more on the north side than on the south side of the road. Mr. Loyland testified that, as he came over the top of the hill and into the ravine, he wasn't sure whether the snowplow and the vehicle immediately behind it were moving, but he did observe the plaintiff's car moving at a point about ten rods behind the vehicle following the snowplow. Mr. Loyland testified that he observed the plaintiff's vehicle move to its left and across the centerline of the road with its two left wheels. The defendant testified that he did not see any turn signal on the plaintiff's vehicle at the time the plaintiff's vehicle, moved across the centerline with its two left wheels and then back to the right-hand lane. At the time the plaintiff's vehicle returned to its own lane of traffic, there was at least a car length between the plaintiff's vehicle and the vehicle in front of the plaintiff. The defendant testified that he did not see any brake lights on the plaintiff's car at any time. On cross-examination, the defendant testified that, as soon as he noticed the plaintiff's vehicle moving out toward the centerline, he started applying his brakes; that he had started down the hill; that he wasn't sure how far he had gone but that it was 'just over the top of the hill.' However, on direct examination, the defendant testified he applied his brakes at the time he saw the plaintiff's vehicle going back into its own lane. The defendant testified that, as soon as he started to apply his brakes, his pickup started sliding sideways on the ice and, 'in that movement, I let up a little then pressed again and tried to stop by pumping the brakes a little rather than holding them in all the time.' The defendant further testified that the rear end of his vehicle started to go sideways toward the north ditch, and from that point on the was unable to stop his vehicle and that the front end of his vehicle collided with the rear end of the plaintiff's vehilce.

The collision took place in the north lane, at which time the plaintiff's vehicle was heading in a westerly direction completely in his own, or the north, lane. At the time of the collision, the plaintiff's vehicle was moving.

The defendant further testified that, about halfway down the ravine, he observed a car coming toward him from the opposite direction and going east, and that when he first observed the car it was about halfway down the rise to the west of where the accident occurred.

In an action arising out of the collision, the defendant entered a plea of guilty to the charge of failing to exercise the care required.

The Highway Patrolman, Mr. Ness, testified that he investigated the accident. The Highway Patrolman stated that he talked with the plaintiff, Mr. Spalding, at the scene of the accident and that Mr. Spalding stated that his speed at the time of the accident was less than five miles an hour. The Patrolman further stated that he talked with the defendant, Mr. Loyland, at the scene of the accident and Mr. Loyland stated that his speed was less than forty miles an hour at the time of the accident. The Patrolman testified that he measured the distance from the crest of the hill east of the ravine where the accident happened down to the township road and the area from the township road on down to the bottom of the ravine. The Patrolman testified that, from the crest, or top, of the hill down to the east edge of the township road, which was the vicinity in which the collision occurred, the distance was 292 paces; that the approximate distance of his pace is three feet.

Mr. Spalding, the plaintiff, testified that, on the day of the collision, the sun was shining and visibility was very good; that he passed the defendant's vehicle prior to reaching the ravine where the collision occurred and returned to his right-hand lane; that because of the condition of the road he reduced his speed to between thirty and thrity-five miles an hour at the crest of the ravine; that, as he came to the crest of the ravine, he observed the snowplow entering Highway No. 2 from the township road and that the snowplow was proceeding in a westerly direction; that there were two cars between him and the snowplow and there was a distance of about two car lengths between the snowplow and the car immediately to the rear of the snowplow.

Mr. Spalding testified that he observed brake lights from the car closest to him and that he began to apply his brakes and continued to apply his brakes in pumping fashion; that he saw that there was not as much ice cover on the south lane and he edged his vehicle over slightly beyond the centerline so that the left two wheels were in that area and, after having slowed down...