Willert v. Nielsen, 8320

• Decision Date: 13 October 1966
• Docket Number: No. 8320,8320
• Parties: Helen WILLERT, Plaintiff and Appellant, v. Kenneth N. NIELSEN, Defendant and Respondent.
• Court: North Dakota Supreme Court

Page 26

146 N.W.2d 26

Helen WILLERT, Plaintiff and Appellant, v. Kenneth N. NIELSEN, Defendant and Respondent.

No. 8320.

Supreme Court of North Dakota.

Oct. 13, 1966.

Rehearing Denied Nov. 18, 1966.

Syllabus by the Court

1. Instructions to a jury must be considered in their entirety. If the effect of the whole is to outline the issues in the case fairly and correctly, an isolated improper statement contained therein will not be considered prejudicial error.

2. In a case in which prejudicial error in an instruction is charged, this court will consider the evidence before the jury, as well as the specific language used by the court, to determine whether the instruction complained of was in fact prejudicial.

3. Although it may be apparent to attorneys and judges that the words 'decedent's' and 'decedent' or the name of the deceased child should have been used in instructions in place of the words 'plaintiff's' and 'plaintiff' and that the trial court inadvertently used the latter words, it cannot be assumed that the jury, composed of lay people unacquainted with the rules of contributory negligence, proximate cause, and actionable negligence, discerned that the instructions did not mean what they said.

4. The giving of instructions on contributory negligence containing such words as 'though slight' or similar phrases in referring to the degree which negligence of a party cooperates with or contributes to the negligence of another in causing the injuries complained of, is prejudicial error, especially when the court erroneously substituted the word 'plaintiff's' for the word 'decedent's' in giving the instructions.

5. In an action by a parent to recover damages for the wrongful death of a minor child, the measure of damages is the pecuniary loss which the parent sustains by reason of being deprived of the child's services during his minority and the loss of contributions that might reasonably be expected to be made after reaching his majority.

6. For reasons stated in the opinion, it was not error in an action by a parent to recover damages for the wrongful death of a minor child for the trial court to refuse to give a requested instruction that pecuniary loss need not be established by proof in dollars and cents, and that substantial loss will be presumed.

7. In a case in which the court preceded an instruction with a statement that no pedestrian shall suddenly leave a curb or other place of safety and walk or run into the path of a vehicle which is so close that it is impossible for the driver to yield (§ 39--10--28(2), N.D.C.C.) and followed the recitation of the statute with a statement that a violation of law is evidence of negligence which the jury may consider in determining the issue of negligence, it was error for the court not to include a reference to the statute which says that notwithstanding foregoing provisions of the chapter, every driver of a vehicle shall exercise due care to avoid colliding with any pedestrian upon any roadway and shall give warning by sounding the horn when necessary and shall exercise proper precaution upon observing any child or any confused or incapacitated person upon a roadway (§ 39--10--30, N.D.C.C.).

8. The plaintiff's contention that the trial court abused its discretion in excusing the twelfth juror in the absence of a showing of bias or other good cause is without merit for the reason that the plaintiff's attorney, after conferring with her, agreed that the trial should proceed with eleven jurors.

9. Questions of negligence, contributory negligence, and proximate cause are questions of fact for the jury to determine unless the evidence is such that reasonable minds can draw but one conclusion. The evidence in this case being in conflict, we do not find it to be such that reasonable minds could not differ thereon.

Ohnstad, Twichell, Maxwell & Ramage, West Fargo, for appellant.

Wattam, Vogel, Vogel, Bright & Peterson, Fargo, for respondent.

ERICKSTAD, Judge.

We have before us an appeal by the plaintiff, Helen Willert, from a judgment of the District Court of Cass County which dismissed her cause of action and from an order of that court denying her motion for new trial.

Helen Willert is the mother of seven-year-old Cathleen Schumacher, who was struck and injured by an automobile driven by the defendant, Kenneth N. Nielsen, on February 28, 1964, as she crossed Tenth Street at the pedestrian crosswalk near Third Avenue North in Fargo. As a result of the injuries she suffered in the accident, Cathleen died on February 29, 1964. Mrs. Willert brought this action against Mr. Nielsen, alleging that her daughter's death was a result of his negligence; that she had incurred medical, hospital, funeral, and other expenses in the sum of $2,000, and that she had suffered pecuniary loss and injury as a result of the death of her daughter in the sum of $37,000.

In his answer Mr. Nielsen acknowledged that an accident had occurred and that Cathleen died from injuries suffered therein. He denied all the other allegations. He alleged that Cathleen ran out from between two automobiles into the path of his vehicle; that therefore the accident resulted from her failure to take due care and caution for her own safety; and that her own negligence proximately caused or contributed to the cause of the accident.

Mrs. Willert in her reply denied every material allegation of the answer and alleged that Cathleen was lawfully on the pedestrian crosswalk at the time she was struck and that Mr. Nielsen drove into her in violation of her right of way as a pedestrian while he was driving at a high and unlawful rate of speed.

The case was tried to a jury, and a verdict in favor of the defendant was returned.

Mrs. Willert concedes that a jury question was presented by the facts and that only issues of law are presented on this appeal.

She contends that it was prejudicial error for the court to give the following instructions:

* * * The rule is that whenever the Plaintiff's acts show any want of ordinary care under the circumstances, even the slightest, contributing in any degree, even the smallest, as a proximate cause of the injury for which action is brought, plaintiff's right to recover is thereby destroyed.

The court instructs the jury that not every negligent act will support an action for damages. To constitute actionable damages there must exist three essential elements, namely:

1. A duty or obligation on the part of the defendant to protect the Plaintiff from injury.

2. A failure on the part of the defendant to perform that duty.

3. An injury to the Plaintiff resulting proximately, as hereinbefore defined, directly and without any intervening cause, from the failure of the defendant to perform that duty.

When these three elements are brought together they unitedly constitute actionable negligence. If the evidence by a fair preponderance thereof fails to establish any one of these elements, such failure is fatal to plaintiff's cause of action, and the jury must render a verdict for the defendant. (Emphasis supplied.)

The italicized words 'plaintiff's' and 'plaintiff' were erroneously used by the court for the words 'decedent's' and 'decedent.'

It is Mrs. Willert's contention that the substitution of the word 'plaintiff's' in the first paragraph injected into the case a matter that was outside the issues framed by the pleadings and to which there was no specific testimony; and that this instruction misled the jury into believing that some negligence of the parent, Helen Willert, may somehow have contributed to the injury of the child.

She states that by this instruction the jury was thrown wholly upon its own resources to find some remote or speculative fault on the part of the plaintiff mother and that the jury was thereby free to conceive and foist duties upon the plaintiff mother, the breach of which may in some remote way have contributed to the accident and thus have avoided the plaintiff's right to recover.

She asserts that this instruction on contributory negligence, even when given without the substitution of 'plaintiff's' for 'decedent's' is an instruction that has been disapproved by this court in the recent case of Spalding v. Loyland, 132 N.W.2d 914 (N.D.1964) because of the recognized tendency of the instruction to confuse and mislead the jury.

She further contends that the mistaken use of the word 'plaintiff' for the word 'decedent' in the balance of the instructions quoted made those instructions a misstatement of the presently existing law on actionable negligence and that such an instruction is fatal to the case.

On the other hand, Mr. Nielsen contends that an examination of the trial court's instructions as a whole clearly indicates that the contentions of Mrs. Willert are without merit. He states that the rule in North Dakota is that:

Instructions to a jury must be considered in their entirety. If the effect of the whole is to outline the issues in the case fairly and correctly, an isolated improper statement contained therein will not be considered prejudicial error. (Citing Froh v. Hein, 76 N.D. 701, 39 N.W.2d 11.)

He refers the Court to Grenz v. Werre, 129 N.W.2d 681, at 690 (N.D.1964), in which we said, quoting from earlier decisions:

'(t)hough 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.' Ferderer v. Northern P. Ry. Co., 77 N.D. 169, 42 N.W.2d 216; Froh v. Hein et al., 76 N.D. 701, 39 N.W.2d 11; Hoffer v. Burd et al., 78 N.D. 278, 49 N.W.2d 282.

Mr. Nielsen points out that initially the court correctly instructed the jury on the issues involved in the action and that shortly before the substitution of the words 'plaintiff's' and 'plaintiff' for 'decedent's' and 'decedent' the court properly instructed the jury that it was the negligence...