Wolff v. Light, 8528

• Decision Date: 23 June 1969
• Docket Number: No. 8528,8528
• Citation: 169 N.W.2d 93
• Parties: Ardel WOLFF, Individually and as Trustee for the North Dakota Workmen's Compensation Bureau, Plaintiff, Appellant, and Cross-Respondent, v. Dudly LIGHT, Defendant, Respondent, and Cross-Appellant. Civ.
• Court: North Dakota Supreme Court

Page 93

169 N.W.2d 93

Ardel WOLFF, Individually and as Trustee for the North Dakota Workmen's Compensation Bureau, Plaintiff Appellant, and Cross-Respondent, v. Dudly LIGHT, Defendant, Respondent, and Cross-Appellant.

Civ. No. 8528.

Supreme Court of North Dakota.

June 23, 1969.

Syllabus by the Court

1. A decision of the Supreme Court reversing an order granting summary judgment on motion of the defendant does not prevent the trial court from granting judgment notwithstanding the verdict after trial on the merits. While the showing of the parties by way of pleadings, admissions, depositions, interrogatories, and affidavits, and reasonable inferences to be drawn therefrom, may be such that an order for summary judgment will be set aside by this court on appeal, this does not preclude the trial court from granting judgment notwithstanding the verdict after hearing the witnesses, seeing their demeanor on the stand, and considering all of the evidence produced at the trial.

2. Generally, a plaintiff who is aware of a danger, and who fails to use ordinary care to avoid injury to himself from such danger, is guilty of contributory negligence, which will preclude him from recovering damages against the one whose negligence was responsible for such danger.

3. The general rule that one who is contributorily negligent will be barred from recovering from a negligent defendant is subject to an exception in a case where the plaintiff's exposure to danger was for the purpose of rescuing another person from imminent peril.

4. One is not guilty of contributory negligence in exposing himself to danger of injury in order to rescue another from imminent peril or death if, under the same or similar circumstances, an ordinarily prudent person might so expose himself.

5. In order to bring a person within the exception to the contributory-negligence rule, the peril threatening the person rescued must be imminent and real, or the situation must be such that a reasonably prudent person, under similar circumstances, would act as did the person who is claiming to come within such exception.

6. Where no one was in imminent danger or peril from falling glass and where the plaintiff, knowing that removing broken glass from a window is dangerous, made no investigation to determine how much glass remained in the window or how it was attached, but impulsively grabbed such broken glass with his hands and attempted to push it out of the window frame and was cut by falling portions of the broken glass, he cannot be considered a rescuer.

7. Where the plaintiff, a grown man who had had experience handling broken glass and who admitted that, had he taken the time to investigate the situation, he would not have acted as he did when he attempted to remove the pieces of broken glass, and where his failure to exercise ordinary care to avoid injury was not in the face of imminent danger to anyone, his conduct cannot be considered the act of a rescuer. Such conduct, under the circumstances, was contributory negligence as a matter of law.

8. For reasons set forth in this opinion, the judgment notwithstanding the verdict is affirmed.

Mackenzie & Jungroth, Jamestown, for plaintiff, appellant, and cross-respondent.

Wattam, Vogel, Vogel & Peterson, Fargo, for defendant, respondent, and cross-appellant.

STRUTZ, Judge.

This is the second time that this case has come before this court. The opinion on the first appeal will be found in 156 N.W.2d 175 (N.D.1968). In that case, the plaintiff appealed from a summary judgment entered on motion of the defendant. This court, in a divided opinion, held that in cases involving issues of negligence, contributory negligence, assumption of risk, and proximate cause, where the standards of the reasonable man must be applied to conflicting testimony or, even where there is no dispute as to the facts, where inferences may be reasonably drawn from the evidence to indicate that an issue of fact does exist, summary judgment should not be granted. Consequently, the summary judgment appealed from was reversed and the case was remanded for trial.

Upon trial of the action, the jury returned a verdict for the plaintiff in the sum of $6,500, and judgment was entered thereon. After entry of judgment, the defendant moved for judgment notwithstanding the verdict or, in the alternative, for a new trial, setting forth numerous specifications of insufficiency of the evidence and errors of law. The plaintiff, on his part, filed a motion for new trial on the issue of damages alone or, in the alternative, for additur increasing the verdict of the jury by $3,117.74, the amount of the special damages claimed by the plaintiff, the jury having failed to award any special damages in its verdict.

The trial court ordered judgment for the defendant notwithstanding the verdict for the plaintiff. It further ordered, if the judgment notwithstanding the verdict should be reversed on appeal, that the defendant's alternative motion for new trial be denied as well as the plaintiff's motion for additur, and that the plaintiff have a new trial on the issue of damages alone.

The plaintiff takes this appeal from the judgment notwithstanding the verdict, while the defendant corss-appeals from that portion of the judgment notwithstanding the verdict which provides that if judgment in favor of the defendant notwithstanding the verdict should be reversed, then the defendant's motion in the alternative for a new trial be denied and the plaintiff's motion for new trial on the issue of damages alone be granted.

The facts in this case are not in serious dispute. The defendant, accompanied by his wife and small daughter, had driven from Bismarck to Jamestown, where he stopped at the 94 Gas Station and Cafe to have his automobile serviced. While the servicing was being done, he, together with his wife and daughter, went into the care to eat. Because of the extreme cold, he placed a book on the accelerator to keep the motor running while the car was being serviced and while he and his family were in the cafe eating. After eating, the defendant decided to drive the car to the door of the cafe so that his wife and daughter would not have to walk any great distance in the bitter cold. He started driving toward the cafe, a distance variously estimated by witnesses to be between twenty-five and thirty-five feet. The accelerator stuck and, in spite of the application of brakes, the car inched forward, striking the molding which held the glass in glass in the large window of the cafe, breaking the window.

There is some contention on the part of the defendant that the plaintiff has failed to produce any evidence which establishes that the defendant was negligent. The plaintiff, on the other hand, assumes that the defendant was negligent in breaking the window, since the jury found for the plaintiff on this issue. The plaintiff consequently places most of his emphasis on this appeal upon the question of his own contributory negligence.

In support of his appeal, the plaintiff lists three issues to be considered by this court:

1. Is a decision of the Supreme Court a binding precedent upon the district courts?

2. Was the defendant free from negligence as a matter of law?

3. Was the plaintiff guilty of contributory negligence?

We will discuss the issues listed as 1 and 3 before turning our attention to the issue of the defendant's negligence, for if the plaintiff was negligent, as is contended by the defendant, it is immaterial whether the defendant himself was negligent. So, without considering whether the evidence is sufficient to find the defendant negligent, we first will consider the other issues raised on this appeal.

The plaintiff asserts that the decision of this court is binding upon the district courts of this State on issues of law, and that since this court found on the former appeal that there was evidence which would support a verdict for the plaintiff, the jury's verdict on issues of fact is final. What the majority held on the former appeal is that there was a sufficient showing, by way of pleadings, depositions, admissions, affidavits, and interrogatories, and inferences which could be drawn therefrom, to warrant submission of the case to a jury. Our decision on the former appeal did not establish that evidence which might be produced on a trial of the case would, as a matter of law, require a finding for the plaintiff, nor that a finding for the plaintiff by the jury would not be subject to order granting judgment notwithstanding the verdict, on proper motion.

We would point out that the same evidence was not before the jury, that had been before this court on the former appeal. This court held that a summary judgment should not have been granted, and should not be granted in negligence cases generally, even where there is no dispute as to the evidence, if reasonable inferences can be drawn from the evidence from which a jury might find the defendant negligent; and that even where there is no dispute as to the evidence, a jury should be permitted to say whether the defendant's conduct meets the standard of a reasonable man. Wolff v. Light, 156 N.W.2d 175 (N.D.1968). A summary judgment is based upon pleadings, depositions, admissions, affidavits, and interrogatories, and inferences to be drawn therefrom.

But this court, by holding on the former appeal that summary judgment should not have been granted and that the case should have been submitted to a jury, did not determine that the plaintiff, in every case where the evidence is such that a summary judgment should not be granted, should have judgment on the trial of the action. The same evidence was not involved on the trial of this case as was submitted to the trial court on motion for summary judgment. For example, the showing of the plaintiff at the time of the motion for summary judgment was that there were several people in the cafe at the time, with an inference that these persons...