Ziegler v. Ford Motor Company, a Corp.
| Decision Date | 25 February 1937 |
| Docket Number | 6450 |
| Citation | 272 N.W. 743,67 N.D. 286 |
| Court | North Dakota Supreme Court |
Syllabus by the Court.
1. Under the evidence in this case the questions of negligence and contributory negligence are questions of fact and the verdict of the jury is conclusive thereon.
2. The evidence is ample to support a finding by the jury that the proximate cause of the accident was the negligent operation of a truck by the defendants, and that the plaintiff was not guilty of negligence which contributed proximately to his injury.
3. Instruction by the trial court leaving to the jury as a question of fact whether the failure of the defendant who was driving truck to sound a warning was negligence, which was a proximate cause of plaintiff's injury, was not erroneous.
4. The failure of the court to further instruct the jury upon its return to the courtroom did not constitute error where the court sought to ascertain from the jury if any part of the given instructions was not understood, and indicated his willingness to further instruct upon any point that the jury might desire, but was unable to obtain a response.
5. In the instant case, it is held, for reasons stated in the opinion, that a verdict of $16,000 is excessive and it is reduced to, $10,000, with an option to the plaintiff to file a remission of the excess or retry the case.
Appeal from District Court, Cass County; Daniel B. Holt, Judge.
Action by M. A. Ziegler against the Ford Motor Company and another. Judgment for plaintiff, and defendants appeal.
Affirmed upon condition of remittitur.
Pierce Tenneson, Cupler & Stambaugh, for appellants.
Evidence of the collision is not sufficient to establish a prima facie case. The doctrine of res ipsa loquitur does not apply. Vannett v. Cole, 41 N.D. 260, 170 N.W. 663.
The evidence must affirmatively establish circumstances from which the inference fairly arises that the accident resulted from the want of some precaution which the defendant ought to have taken. Wabash, St. L. & P.R. Co. v. Locke, 112 Ind. 404, 14 N.E. 391; Garraghty v. Harstein, 26 N.D. 148 143 N.W. 390.
This court has long since, following the great weight of authority, rejected the scintilla theory of submitting cases to the jury. Fuller v. N.P. Elevator Co. 2 N.D. 220 50 N.W. 359; Duncan v. G.N.R. Co. 17 N.D. 610.
When it is impossible to arrive at a verdict except by speculation or surmise, guess-work, or conjecture, the case should be taken from the jury. Scherer v. Schlaberg & Griffin, 18 N.D. 421, 122 N.W. 1000.
A verdict cannot be based upon mere conjecture or suspicion. State Bank v. Bismarck Elevator & Invest. Co. 31 N.D. 102, 153 N.W. 459; Reaver v. Walch, 55 App. D.C. 159, 3 F.2d 204; Whalen v. Mutrie (Mass.) 142 N.E. 45; McAvoy v. Kromer (Pa.) 120 A. 762; Carlsen v. Diehl (Cal.) 208 P. 150.
If, in doing a lawful act, a casualty, purely accidental, arises, no action will lie for an injury resulting. Kalsow v. Grob, 61 N.D. 119, 237 N.W. 848; Depons v. Ariss, 188 P. 797; Bowers v. Colonial Warehouse Co. (Minn.) 190 N.W. 609; Klink v. Bany, 207 Iowa 1241, 224 N.W. 540.
Drivers are not required to sound their horns, unless they see danger ahead or have reasonable apprehension to believe a child or adult will appear in their path; McAvoy v. Kromer (Pa.) 120 A. 762; Bishard v. Engelbeck, 180 Iowa 1132, 164 N.W. 203; Winter v. Van Blarcom (Mo.) 167 S.W. 498; Malcolm v. Nunn (Ky.) 10 S.W.2d 817; Moeller v. Packard (Cal.) 261 P. 315; Markgraf v. McMillan, 197 Minn. 571, 267 N.W. 515.
Instructions to the jury should be confined to the issues presented by the evidence. Pease v. Magill, 17 N.D. 166, 115 N.W. 260.
Instructions on issues or matters not raised by the evidence are erroneous. Grandin Invest. Co. v. Hartung, 49 N.D. 364, 191 N.W. 783; 38 Cyc. 1618; Foster v. Dwire, 51 N.D. 581, 199 N.W. 1017; Black v. Smith, 58 N.D. 109, 224 N.W. 915; Messer v. Bruening, 25 N.D. 599, 142 N.W. 158; Priebe v. Crandall (Mo.) 187 S.W. 608; People v. Odell, 230 N.Y. 481, 130 N.E. 619; 14 R.C.L. 786; Holub v. Fitzgerald, 214 Iowa 857, 243 N.W. 575.
Where a case is submitted to the jury upon several theories and a general verdict is returned, it is impossible to determine upon what theory the verdict was rendered, therefore such instructions constitute reversible error, because the verdict may have been rendered upon a theory unsupported by the evidence. McLeod v. Simon, 51 N.D. 533, 200 N.W. 790.
Where a plaintiff in an action for negligence sets out in his complaint the specific acts of negligence upon which he relies, he is thereby restricted in his proof and he must recover, if he recovers at all, upon the particular acts of negligence set out in the complaint. Hall v. N.P.R. Co. 16 N.D. 60, 111 N.W. 609; Gast v. Northern P.R. Co. 28 N.D. 118, 147 N.W. 793; Blackstead v. Kent, 63 N.D. 246, 247 N.W. 607.
An instruction setting forth a duty to sound a horn where the evidence does not show the necessity for the same is error. Field v. Collins (Ky.) 92 S.W.2d 793; Barton v. Van Gesen (Wash.) 157 P. 215.
Nilles, Oehlert & Nilles, for respondent.
The finding of the jury is not to be disturbed unless it is clear that the jury were actuated by passion, prejudice or corruption. Moen v. Moen, 65 N.D. 40, 256 N.W. 254; Booren v. McWilliams, 34 N.D. 74, 157 N.W. 698; Swanstrom v. Minneapolis, St. P., & S. Ste. M.R. Co. 34 N.D. 141, 157 N.W. 976.
A jury's verdict on the issue of negligence, and the issue of contributory negligence, must stand unless it appears from the record that the plaintiff was guilty of contributory negligence as a matter of law. Logan v. Schjeldahl, 66 N.D. 152, 262 N.W. 463; State v. Yellow Cab Co. 62 N.D. 733, 245 N.W. 382.
In order to constitute contributory negligence as a matter of law, the facts and circumstances must be such that no other inference can fairly and reasonably be drawn therefrom. Haugo v. Great Northern R. Co. 27 N.D. 268, 145 N.W. 1053; Dougherty v. Davis, 48 N.D. 883, 187 N.W. 616; Billingsley v. McCormick Transfer Co. 58 N.D. 913, 228 N.W. 424.
A hard and fast practical rule in reference to the blowing of an automobile's horn is not definable. Clifford v. Hinds (Me.) 120 A. 179.
Failure to give a warning signal does not constitute negligence when there is no apparent necessity for such warning. Pixler v. Clemens (Iowa) 191 N.W. 375; 42 C.J. 915.
When the driver of an automobile sees pedestrians walking along the highway in front of him, it is his duty to take extraordinary care to prevent injuring them, and he must take reasonable care to make certain that the pedestrians are aware of his approach. Baquie v. Meraux, 11 La.App. 368, 123 So. 338; Kelly v. Ludlum, 9 La.App. 57, 118 So. 781; 1 Berry, Auto. 6th ed. 293; Avery v. Collins (Miss.) 157 So. 695; Belliveau v. Bozoian (R.I.) 125 A. 82; Huddy, Auto. 5th ed. § 432; Young v. Bacon (Mo.) 183 S.W. 1079.
The issues of negligence on the part of the defendant and of contributory negligence on the part of the pedestrian are questions for the jury. Boyer v. Josephson, 185 Minn. 221, 240 N.W. 538.
It is discretionary with the trial court to give special verdicts or interrogatories. Olson v. Horton Motor Co. 48 N.D. 490, 185 N.W. 365.
The instructions must not be subjected to critical analysis, like pleadings or statutes, or even like contracts. Louden Irrigating Canal & Reservoir Co. v. Neville, 75 Colo. 536, 227 P. 563; Kargman v. Carlo, 85 N.J.L. 632, 90 A. 292; Storla v. Spokane, P. & S. Transport Co. (Or.) 298 P. 1065.
If the whole instruction taken together advises the jury correctly as to the law that should govern them in the consideration of the matters submitted, there is no error. Gagnier v. Fargo, 12 N.D. 219, 96 N.W. 841; Axford v. Gaines, 50 N.D. 341, 195 N.W. 555; Heuther v. Havelock Equity Exch. 52 N.D. 786, 204 N.W. 828.
Before a verdict will be set aside, it must be so palpably wrong as to shock the judicial conscience. Swanstrom v. Minneapolis, St. P. & S. Ste. M.R. Co. 34 N.D. 141, 157 N.W. 976; Rober v. Northern P.R. Co. 25 N.D. 394, 142 N.W. 22; Hardin v. Rogers, 37 S.D. 455, 159 N.W. 63; Bottum v. Kamen, 43 S.D. 498, 180 N.W. 948; Brown v. Murphy Transfer & Storage Co. 190 Minn. 81, 251 N.W. 5; Madole v. Chicago, R.I. & P.R. Co. 161 Minn. 535, 201 N.W. 937; Coleman v. Rightmeyer (Mo.) 285 S.W. 403; Goodman v. Robinson, 175 N.Y.S. 867; Reichman v. Robertson, 264 Ill.App. 537.
A motion for a new trial on the ground of excessive damages appearing to have been given under the influence of passion and prejudice is addressed to the sound judicial discretion of the trial court, and the appellate court will not interfere unless there is an abuse of such discretion. State use of Workmen's Comp. Fund v. Northwest Nursery Co. 66 N.D. 704, 268 N.W. 689; Reid v. Ehr, 36 N.D. 552, 162 N.W. 903; Mason v. Underwood, 49 N.D. 243, 191 N.W. 949; Burdick v. Mann, 60 N.D. 710, 236 N.W. 340; Halverson v. Zimmerman, 56 N.D. 607, 218 N.W. 862; Kohlman v. Hyland, 56 N.D. 772, 219 N.W. 228.
This is a personal injury action. The defendants appeal from a judgment entered pursuant to a verdict of a jury and from an order of the District Court denying defendants' alternative motion for a judgment notwithstanding the verdict or for a new trial. The defendants assert that the evidence is not sufficient to sustain the verdict, and also urge error on instructions of the trial court and rulings on questions of evidence.
On February 15, 1935, the plaintiff, who is a Ford dealer, went to a branch of the Ford Motor Company in Fargo, North Dakota for the purpose of...
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