Webster v. Ek
| Decision Date | 25 February 1932 |
| Docket Number | 6026 |
| Citation | 241 N.W. 503,62 N.D. 44 |
| Court | North Dakota Supreme Court |
Appeal from the District Court of Sargent County Hutchinson, J.
Reversed.
Kvello & Adams, for appellants.
A Leslie, for respondent.
On July 12, 1930, a collision occurred between plaintiff's car driven by himself and a car belonging to the defendant John Ek and driven by Amanda Ek. Plaintiff commenced an action for damages because of the collision, and the defendant John Ek in his counterclaim asks judgment for damages to his car. The jury returned a verdict in favor of the plaintiff and judgment was entered thereon.
The defendants moved for a new trial upon two grounds; first, misconduct of the jury and second "newly discovered evidence material to the defendants which they could not with reasonable diligence have discovered and produced at the trial." This motion was denied and the defendants appeal specifying as error that "the court erred in . . . denying defendants' motion for a new trial on the ground of newly discovered evidence."
The plaintiff was alone in his car and gave his version as to how the collision took place. He stated he had travelled from Lisbon, south, and reached highway No. 13, which runs east and west, that his car was at a standstill on the south side of this highway, and within a foot of the edge of the shoulder; that defendant's car was coming from the cast, travelling on the north side of this same highway; that when defendants' car came within a rod or two of his car it deliberately veered over to the southeast at a speed of approximately twenty-five miles per hour and struck his car, on the left front corner. The plaintiff produced no other eye witness to the collision, but furnished some testimony showing the relative position of the two cars after the collision.
The defendants, who are husband and wife, were travelling west and were sitting in the front seat of their car, while three young ladies, nieces of the wife, were sitting in the back seat. The defendants state that plaintiff was travelling south on highway No. 9 toward highway No. 13, which runs east and west; that as they were within a few feet of the Y formed by the intersection of the highway they saw the plaintiff's car some 250 feet away coming from the north at a furious rate of speed; that they were travelling at a very slow rate of speed; when they reached the intersection of the road the plaintiff struck them with the left front side of his car; that the force of the collision interlocked the car and pushed their car over to the south side of the highway. In this they are corroborated by two of the nieces. There is no dispute between the parties as to where the cars were found interlocked, the relative position of each car at that time, or the general topography of the roads. The defendants emphatically deny plaintiff's car had come to a standstill and that they veered across the road and struck his car.
The plat of the road, and the maps giving the position of the cars at various times according to the version of each party, do not differ in regard to the fixed conditions of the road, though the maps differ decidedly as to the position of the cars at the time of the collision, but not as to the position of the cars when the force of the impact had spent itself.
In view of our decision we do not consider it wise to set forth in detail the testimony given by the witnesses, nor to express any opinion as to the credibility of a witness. Without in any way impugning the good faith of any of the witnesses who saw the collision we are convinced that owing to the excitement occasioned by the collision, and the physical facts as agreed upon by both sides, neither party has given the correct version of how the collision took place -- that is, we are convinced from the record that the version given by either side can not be harmonized with the physical facts which are not in dispute.
The motion for a new trial is based upon the affidavit of John Ek, showing what diligence was exercised, and the alleged newly discovered evidence set forth in the affidavit of one O. Buck. From these affidavits it appears Mr. Buck was travelling west on the highway No. 13 following the defendants' car at a short distance. He had both cars under observation for some time prior to the collision, and gives the approximate speed at which each was travelling. He describes the situation of each car at the time of the collision, with special reference to the intersecting roads. He appears to be a credible witness and with no interest whatever in the outcome of the law suit. He is a resident of Iowa and apparently some time elapsed before the defendants were able to ascertain his abode and secure his affidavit. By the time the affidavit was secured the case had been tried.
It is the contention of respondents that the defendants were not diligent in securing the affidavit of Mr. Buck and that in any event the testimony which he would give is merely cumulative.
There is no attempt to contradict the statements of the defendants in regard to the efforts made to ascertain the abode of Mr Buck. In his affidavit supporting his motion for a new trial Mr. Ek says that the collision took place on a Sunday, that the next day Mr. Buck worked in the town of Gwinner and the following day left for New Rockford; that there were some negotiations between the parties to this action looking for mutual settlement of the damages and when suit was threatened by the plaintiff the defendant wrote to Buck at New Rockford but the letter was returned; that he wrote to the postmaster at New Rockford for information and was informed "that no such party was known at New Rockford;" that it was not until after the law suit was tried he was able to find any address of Mr. Buck and this came through a fortuitous statement by an employee in a rooming house that some one in New Rockford was in correspondence with the witness Buck in Iowa; that he secured this Iowa address, wrote to Buck, received a reply and later...
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