Waletzko v. Herdegen, 9061

• Decision Date: 27 February 1975
• Docket Number: No. 9061,9061
• Citation: 226 N.W.2d 648
• Parties: Myra WALKETZKO, Plaintiff and Appellant, v. Carol Jo (Vondrachek) HERDEGEN, Defendant and Appellee. Civ.
• Court: North Dakota Supreme Court

Page 648

226 N.W.2d 648

Myra WALKETZKO, Plaintiff and Appellant, v. Carol Jo (Vondrachek) HERDEGEN, Defendant and Appellee.

Civ. No. 9061.

Supreme Court of North Dakota.

Feb. 27, 1975.

As Amended March 7, 1975.

Syllabus by the Court

1. A motion for directed verdict is to be denied unless the evidence is such that reasonable men, without weighing the credibility of witnesses or otherwise considering the weight of the evidence, could not disagree upon the conclusion to be reached.

2. A motion for directed verdict should not be granted unless the moving party is entitled to a judgment on the merits as a matter of law. In determining whether the moving party is entitled to a judgment on the merits as a matter of law, the evidence should be evaluated in the light most favorable to the party against whom the motion was made.

3. If there is a question whether one's conduct has met the standard of the reasonable man, or whether one has acted reasonably and with due care, there is a question of fact to be determined by the jury.

4. Questions of negligence and proximate cause ordinarily are for the jury to decide. They become questions of law only when reasonable men can draw but one conclusion.

5. Instructions that are submitted to the parties for exception and are not objected to, after an attorney for a party has had them for a reasonably sufficient time to study them, become the law of the case and any objections to them are waived. Rule 51, N.D.R.Civ.P.

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

7. In determining the sufficiency of the evidence to sustain the verdict of the jury, this court must view the evidence in the light most favorable to the verdict.

8. The Supreme Court's review of the facts is limited to consideration of whether there is substantial evidence to sustain the verdict; if there is, the court is bound by the verdict.

9. The jury need not accept undisputed testimony, even of experts.

Murray, Mack, Moosbrugger & Leonard, Grand Forks, for plaintiff and appellant; argued by Jerome J. Mack, Grand Forks.

Bruce E. Bohlman, Sp. Asst. Atty. Gen., North Dakota Unsatisfied Judgment Fund, and John Schneider, Senior Law Student, Grand Forks, for defendant and appellee; argued by both.

VOGEL, Judge.

This is an appeal from a judgment entered on a jury verdict in district court and from the trial court's order denying Waletzko's motion for judgment notwithstanding the verdict or in the alternative for a new trial.

At approximately 1:20 p.m., February 13, 1972, the plaintiff, Myra Waletzko, was a passenger in a car driven by her husband. While stopped for a red light, the Waletzko car was struck from behind by a car driven by the defendant, Carol Jo Herdegen.

Herdegen saw the Waletzko vehicle ahead of her from a distance of approximately two blocks, at which point she was traveling between 20 and 25 miles per hour. She took her foot off the accelerator, coasted for a few seconds, applied her footbrake, and found that it didn't work. When she discovered that the brake didn't work she was about 110 feet from the Waletzko car. She then swerved to the right, but decided against going over the curb because she was afraid of striking a tree. She began to swerve to the left, but then decided not to because she was afraid of colliding with other traffic. She then continued ahead and struck the Waletzko car. Herdegen did not apply the emergency brake, testifying that she 'was too frightened' and 'didn't think of anything like that.'

At the time of the collision, Herdegen was traveling between 5 and 10 miles per hour. No taillights or headlights were broken on either car. The Waletzko car was pushed ahead a foot or two. As to the nature of the impact, Mr. Waletzko stated in a deposition:

'Well, at the time it really didn't seem that it was a very hard hit because when you are sitting in a car and the car just moves slightly--so like I held on to the steering wheel and having my foot on the brake I didn't really feel much impact but my wife she--she flopped back and forth a couple times.'

Mrs. Waletzko was hospitalized for injuries to her back and neck the day after the accident for one week, and for about 2 1/2 weeks in April and May of 1972.

Mrs. Waletzko had been involved in two previous car accidents. On November 4, 1970, she was injured in a rear-end accident, which resulted in hospitalization for approximately three months. On September 12, 1971, she was involved in a side-impact collision and again was hospitalized. In both of the previous accidents, Mrs. Waletzko received injuries to her neck and spine, for which she still was being treated at the time of the accident involved in this appeal.

Prior to the first accident, Mrs. Waletzko worked as a cleaning lady for the public school system and also assisted her husband in the maintenance of several apartment units. There was much testimony at the trial as to what activities she engaged in before the first accident and also as to activities she was and was not able to engage in after each of the three accidents. She went back to work between the first two accidents, but was unable to continue and, at the time of the trial, had not returned to work.

A. E. Culmer, M.D., a witness for the plaintiff, testified that he felt that Mrs. Waletzko had received permanent disability from the second accident and had not recovered from either the first or the second accident. He did testify, hwoever, that in his opinion Mrs. Waletzko

'. . . now has a thirty-five percent partial permanent disability of the cervical spine of which I feel that 15 percent is due to the accident of February the 13th, 1972. I feel that she has also a 25 percent partial permanent disability of the lumbosacral spine or low back, of which I feel that 10 percent is due to the accident of February 13, 1972.'

No other medical expert testified.

On January 25, 1974, Dr. Culmer made various rotation and bending tests on Mrs. Waletzko to measure her range of motion. These tests showed, in essence, that her range of spinal motion was more limited than the normal range. X-rays of Mrs. Waletzko's spine also were taken at that time. These X-rays showed continued loss of the normal cervical curve, a decrease in the intervertebral space between two cervical vertebrae, angulation and slight subluxation of some cervical vertebrae, and some spur formations on some of the cervical vertebrae. Views of the low back revealed an increase in the osteophyte formation or spurring on the bodies of the lower dorsal vertebrae, along with a greater decrease in intervertebral space at this level. Dr. Culmer stated that the degenerative changes on these last two groups of X-ray films were felt to be more marked than on the films taken on May 1, 1972.

On cross-examination, Dr. Culmer stated that his examination of Mrs. Waletzko on Janaury 25, 1974, was the first one in which he had recorded measurements of Mrs. Waletzko's range of motion. In earlier examinations, he had noted limitations of motion, but had not recorded the degrees of limitation. He also testified that the osteophytes, or spurs, on Mrs. Waletzko's vertebrae which were noted on X-rays taken February 14, 1972, had developed over a considerable length of time and that a narrowing of intervertebral space between some vertebrae was noticeable on that date. He further stated that most people have a certain amount of osteophytes in their necks or backs, that such a condition ordinarily is more advanced in laboring people than in others, and that a person 40 years old or in his 40s who had been used to doing laboring-type jobs would normally be expected to have a certain amount of such spurring. He also testified that he accepted another physician's opinion that Mrs. Waletzko suffered from a post-traumatic neurosis but that its effect was not included in his disability evaluation.

At the close of the evidence, Waletzko moved for a directed verdict on liability. The motion was denied and the case was submitted to the jury, which returned a verdict in favor of the defendant. Judgment was entered on the verdict, plaintiff's motion for judgment notwithstanding the verdict or in the alternative for a new trial was denied, and plaintiff appealed.

The Waletzko motion for directed verdict was made on the ground that Herdegen did nothing to avoid the accident even though she had sufficent time to avoid it, and there was no fact question since reasonably prudent men could not differ as to her negligence.

We held in Nokota Feeds, Inc. v. State Bank of Lakota, 210 N.W.2d 182, Syllabus 5 (N.D.1973):

'A motion for directed verdict is to be denied unless the evidence is such that reasonable men, without weighing the credibility of witnesses or otherwise considering the weight of the evidence, could not disagree upon the conclusion to be reached.'

To the same effect, see Frank v. Daimler-Benz, 226 N.W.2d 143 (N.D.1974).

In Rau v. Kirschenman, 208 N.W.2d 1, Syllabus 3 (N.D.1973), we held:

'A motion for a directed verdict should not be granted unless the moving party is entitled to a judgment on the merits as a matter of law. In determining whether or not the moving party is entitled to a judgment on the merits as a matter of law, the evidence should be evaluated in the light most...