Trautman v. New Rockford-Fessenden Co-op Transport Ass'n

• Decision Date: 04 December 1970
• Docket Number: No. 8601,ROCKFORD-FESSENDEN,CO-OP,8601
• Parties: Darlene Mae TRAUTMAN and Darlene Mae Trautman as Administratrix of the Estate of Ronald E. Trautman, Deceased, Individually and as Trustee for the North Dakota Workmen's Compensation Bureau, Plaintiffs and Appellants, v. NEWTRANSPORT ASSOCIATION, a corporation, and Donald D. Nutz, Defendants and Respondents. Civ.
• Court: North Dakota Supreme Court

Page 754

181 N.W.2d 754

Darlene Mae TRAUTMAN and Darlene Mae Trautman as Administratrix of the Estate of Ronald E. Trautman Deceased, Individually and as Trustee for the North Dakota Workmen's Compensation Bureau, Plaintiffs and Appellants, v. NEW ROCKFORD-FESSENDEN CO-OP TRANSPORT ASSOCIATION, a corporation, and Donald D. Nutz, Defendants and Respondents.

Civ. No. 8601.

Supreme Court of North Dakota.

Dec. 4, 1970.

Syllabus by the Court

1. It was not an abuse of discretion for the trial court to refuse to permit the plaintiffs, on voir dire examination, to ask the prospective jurors questions as to dollar amounts of damages that could be sought in a tort action.

2. In establishing damages, it is proper to show the pecuniary prospects of the deceased.

3. An out-of-court statement by a party is objectionable because it is hearsay, and an objection on that ground should be sustained unless it falls within one of the recognized exceptions to the hearsay rule, such as the res gestae exception.

4. On a trial where proferred evidence is challenged as irrelevant, the test is whether it will reasonably and naturally tend to prove, or disprove, any matter of fact in issue.

5. On the issue of negligence, it is improper to introduce evidence of a person's reputation for care, or lack of care, based on his driving record. However, a new trial will be granted only when the error is prejudicial and affects the substantial rights of the parties.

6. In a wrongful death action where the defensive pleading of contributory negligence and the evidence introduced to support it are grounded on acts of the decedent which placed him in peril, and no claim is made that the action taken by the deceased, after he was in peril, constituted negligence, it was proper for the trial court to refuse to instruct the jury on the emergency doctrine.

7. In a wrongful death action where there were eyewitnesses to the accident resulting in the death, it was proper for the trial court to refuse to give a requested instruction to the effect that the person who suffered death by the accident should be presumed to have been in the exercise of due care at the time.

8. Proper instructions must be determined from the issues framed by the pleadings and the evidence. Evidence of the lack of uniformity of skid marks made by the three-wheeled motorcycle when the brakes were applied is held sufficient to justify an instruction covering the statutory requirements of brakes on motorcycles.

9 When both contributory negligence and assumption of risk are pleaded as separate affirmative defenses and evidence is introduced to support each, it is proper to instruct on each defense.

10. A motion for new trial, based on the insufficiency of the evidence, is addressed to the sound judicial discretion of the trial court and its decision thereon will not be disturbed, on appeal, unless an abuse of discretion clearly appears.

Mackenzie & Jungroth, Jamestown, for plaintiffs and appellants.

Wattam, Vogel, Vogel & Peterson, Fargo, for defendants and respondents.

TEIGEN, Chief Justice.

This case comes to us on appeal from the order of the district court denying a motion for a new trial, and from the judgment entered by the district court on the verdict of the jury dismissing the plaintiffs' complaint. This case was brought in the district court in Stutsman County by the plaintiffs Darlene Mae Trautman and Darlene Mae Trautman as Administratrix of the estate of Ronald E. Trautman, deceased, individually, and as trustee for the North Dakota Workmen's Compensation Bureau, seeking damages agianst the defendants New Rockford-Fessenden Co-op Transport Association, a corporation, and Donald D. Nutz, hereinafter referred to as plaintiffs and defendants, respectively.

The claim arose from a collision between a motorcycle and a truck, which truck was owned by the defendant, New Rockford-Fessenden Co-op Transport Association, a corporation, and was being driven by the defendant, Donald D. Nutz. The collision occurred on the 3rd day of August, 1966, at an interchange of I-94 just south of Jamestown, North Dakota. The facts, as presented at the trial, indicate that the deceased Ronald Traufman, while working in his official capacity as a policeman for the Jamestown Police Department, was driving the police department's three-wheeled motorcycle north over the interchange overpass when he collided with the truck. The evidence further indicates that the truck left I-94 on the off-ramp at the interchange where the accident occurred and had come to a complete stop at the intersection of the off-ramp and U.S. 281 where it crosses over I-94. After signaling for a left turn, the truck pulled out onto U.S. 281 and turned left to head south on the overpass which carries U.S. 281 over I-94. The truck was a tractor-trailer outfit. A huge fuel oil tank was mounted on the trailer and the outfit was being used to haul fuel to various dealers in the area. When the accident occurred, the tractor portion of the outfit was in the southbound lane; however, the tank-trailer was still largely in the northbound lane as it was being driven across into the southbound lane. The three-wheeled motorcycle, driven by Officer Trautman, struck the tank-trailer at the rear set of its wheels. Officer Trautman was thrown from his motorcycle, receiving serious injuries from which he ultimately died several months later. The accident occurred at approximately 1 p.m., on August 3, 1966. It was a clear August day without any adverse or unusual weather conditions. The highway patrol officer, who investigated the accident, testified that the skid marks left by the right and left rear wheels of the motorcycle measured 76 feet and 54 feet, respectively. The truck left skid marks of 3 feet, 9 inches, and 5 feet, 1 inch, from the left rear and right rear wheels, respectively. The highway patrolman also testified that the speed limit on that particular section of road is 40 miles per hour. The evidence further indicated that there is a dip in that portion of U.S. 281 immediately south of the overpass over I-94, and that such portion of U.S. 281, immediately south of I-94, is not visible to persons on U.S. 281 from the north side of I-94.

In this appeal, the plaintiffs list ten specifications of error. One of these specifications goes to the scope of the voir dire examination of the jurors; four of the specifications go to rulings made by the trial judge in admitting testimony over the objection of the plaintiffs; four of the specifications go to instructions given by the court; and the final specification goes to the claim that the verdict was against the law and contrary to the evidence.

The first specification of error goes to the voir dire examination of the prospective jurors by the plaintiffs. The trial court sustained the defendants' objection to the plaintiff's question to the prospective jurors when they attempted to ask them if there could be a lawsuit for $293,000, if damages in that amount were found to be present, or words to that effect. The specific question was not recorded. The plaintiffs sought $293,305.75 in damages.

Cases cited to this court by both the plaintiffs and the defendants support the proposition that the propriety of the questions asked of prospective jurors, during the voir dire examination, is to be regulated by the trial judge in the exercise of his discretion, and that no appeal from his decision will be allowed unless the trial court has clearly abused its discretion and prejudice has resulted. Murphy v. Lindahl, 24 Ill.App.2d 461, 165 N.E.2d 340, 82 A.L.R.2d 1410 (1960); Anno: Voir Dire Examination--Damages--Amount, 82 A.L.R.2d 1420; Loveland v. Nieters, 79 N.D. 1, 54 N.W.2d 533 (1952).

Rule 47(a) of the North Dakota Rules of Civil Procedure grants the parties to a lawsuit the right to conduct a general examination of prospective jurors. In Loveland v. Nieters, Supra, we held that a voir dire examination of a prospective juror must be conducted in good faith, and that

'* * * the adverse litigants should be given the right to inquire freely about the interest, direct or indirect, of the proposed juror, that may affect his final decision. The scope of inquiry is best governed by a wise and liberal discretion of the court, * * *'

In the present case the plaintiffs wanted to determine the jurors' reactions to the possibility of returning a verdict of $293,000, if damages were found to that extent. We feel that the trial judge properly exercised his discretion when he sustained the defendants' objection to this question. Although some cases in other jurisdictions indicate that questions as to the dollar amounts of possible verdicts have been allowed they have not been allowed as a matter of right but only as a matter of the courts discretion. Murphy v. Lindahl, Supra; Greenman v. City of Fort Worth, 308 S.W.2d 553 (Tex.Civ.App.1958).

Questions to the prospective jurors concerning the possible dollar amount of any verdict are inappropriate as they may tend to influence the jury as to the size of the verdict, and may lead to the impaneling of a jury which is predisposed to finding a higher verdict by its tacit promise to return a verdict for the amount specified in the question during the voir dire examination. Henthorn v. Long, 146 W.Va. 636, 122 S.E.2d 186 (1961); Paradossi v. Reinauer Bros. Oil Co., Inc., 53 N.J.Super. 41, 146 A.2d 515 (1958); Goldstein v. Fendelman, 336 S.W.2d 661 (Mo.1960). It is well within the trial court's discretion to sustain objections to such questions. Chambers v. Bradley County, 53 Tenn.App. 455, 384 S.W.2d 43 (1964).

The next four specifications of error relate to rulings of the trial court on the admission of evidence.

Plaintiffs asked the Jamestown Chief of Police whether there 'was any danger of him (the deceased officer) being fired by the Police Department?' The defendants objected on the ground that the question called for a conclusion...