*1 failure of the de- damages for recover convey, the former whereas fendant to compel the defendant sought to they
action convey premises. Dam- specifically in the first demanded
ages might have been judgment Consequently,
action. between the same the first action
merits subsequent a bar
parties constitutes the same claim or claims based
action only action, matters essentially matters but to all issue subject of the action
connected with litigated in first might have been
action. opinion, in this
For reasons set forth
judgment of the court affirmed. trial
TEIGEN, J., ERICKSTAD C. PAULSON, JJ., CLIFFORD JAN-
SONIUS, Judge, District concur. KNUDSON, B. Associate
HARVEY disqualified, himself did
Justice, deeming participate; CLIFFORD JANSONI-
US, Court in the Judge of the District District, sitting in stead.
Fourth Judicial SIMON, Appellant,
Clement Plaintiff and
Ralph WOODLAND, Defendant Respondent.
Civ. No. 8575.
Supreme Court of North Dakota.
Aug. 26, 1970.
Rehearing Sept. 23, Denied 1970.
land, to recover for property damages to Simon’s 1961 Chevrolet automobile and personal injuries he sustained in collision between his car and a towed a tractor driven Woodland. on a farm-to-market collision occurred approximately road miles south Menoken, denied North Dakota. addition, liability and, alleged contribu- tory The case a defense. was tried to the district court without jury. Judgment dismissing was entered complaint ground con- Simon’s *4 tributory one negligence which constituted proximate accident and causes consequent and injury Simon damages his automobile. Simon has appealed of dismissal judgment from and demands a trial de novo. 15, September 1964, and On Woodland hay loading his bales of on wife hay field located a few of their farm. miles north and They haystack mover completed loading the near sunset and then for home. started white their red and Mrs. Woodland drove Jeep Jeep, and her husband followed the driving his tractor which pro- They loaded both ceeded east to the Church where Glencoe they the north- then south onto turned their gravel leading toward south road operated Jeep farm. Mrs. Woodland tractor-haystack about 35 rods ahead of they passed It mover unit. was dark when headlights Church and the Glencoe lit at the Jeep both the and the tractor were time. Simon, evening,
On the same
Clement
who lives several miles south of
Glencoe
Bismarck,
Milhollan,
Wolf,
for
&
Church,
Glaser
finished his farm chores for
plaintiff
appellant.
and
day
prepared
meeting of
and
attend
held at
being
interest
to area farmers
Hjellum,
Floyd
Bismarck, and
Sperry,
B.
eight
evening at
the Kist
o’clock that
Weiss,
Jamestown,
Jukkala,
&
Nerison
ring,
located between
Livestock Auction
respondent.
defendant and
Simon, together
Bismarck and Mandan.
children,
small
wife and two
PAULSON,
Judge.
car;
and
occupied the front seat
Simon,
the back seat
his father and mother rode
plaintiff,
brought an
The
Clement
defendant,
their
Simons left
farm
Ralph
against
action
Wood-
car.
held
(N.D.1959).
court has also
gravel-surfaced
north on
proceeded
that a
the law governing
Church.
violation
passes
Glencoe
road
north,
highway traffic,
though
driving
he observed
even
such violation
As Simon
negligence, is
opposite
is evidence of
not sufficient
approaching from the
two vehicles
liability
direction,
lights
had
to determine
unless such violation
both of
their
the accident.
noted
one was a car
burning, and he
(N.D.
Wagner,
Hillius
pickup
that the other was
tractor.
N.W.2d
1967).
pertinent
Jeep
following
and the
statutes are
As the Simon
driven
other,
approached each
Simon’s claim that Wood
determining
Mrs. Woodland
lights
negligent:
Mrs.
alternated
land
dim,
Jeep
bright
several times
39-12-04,
op-
N.D.C.C.
“Vehicles
§
lights on his car.
dimmed the
Simon
shall
erated on
state
oncoming
passed
approached
Simon
* * *
following
not exceed the
width
passed
Jeep,
approached
limitations:
oncoming tractor,
then
accident
front
occurred. The left
fender
width,
including
“1. A total outside
car
with the left
Simon
collided
* * *
thereon,
eight
load
feet.
corner of the
towed
nor
apply
shall such limitation
operated by
behind the tractor
Woodland.
employees
farmers or
ranchers or
alleges
In his complaint Simon
supervision
moving
under their
when
*5
Ralph
operating
Woodland was
farm
hay in the stack for his or their own
haystack
mover on
pulling
tractor
cooperation
use
or
-with other
public
negligent
road in a
and
careless
owners, providing
equipment
that
used
manner
that
mover was
for
purpose
operated along
this
shall be
width,
excessive
violation of §
extreme
road or
Century
39-12-04
the North Dakota
highway,
only
shall
operated
and
be
Code;
mover was not
between the hours of
sun-
sunrise and
equipped
proper lights
required by
with
as
set and in accordance with reason-
39-21-15, N.D.C.C.;
that while Woodland
§
regulations prescribed
able rules and
driving
towing
hay-
tractor
highway
the state
commissioner
»
stack
* * *
public highway,
mover on a
without
part
proper
exercise on his
lookout
control,
39-21-01,
Woodland’s
“Every
N.D.C.C.
§
occupied
the highway;
both halves of
upon
highway
any
within
at
this state
such
was the
time from
to a
a half-hour after sunset
the collision between Simon’s
other
any
half-hour before sunrise and at
automobile
when,
Woodland’s
time
light
to insufficient
or
due
conditions,
atmospheric
per-
unfavorable
sons
and vehicles on the
are
The North Dakota Legislature
clearly
discernible at a distance of
has enacted certain laws governing the
display
five
feet ahead
hundred
shall
operation of all
highways
lighted lamps
as
illuminating
devices
of this State.
general
rule is that a
respectively
hereinafter
required
for
violation of these
statutes
evidence of
vehicles,
different
subject
classes
negligence.
Camp
Muhlhauser v. Archie
exceptions
respect
parked
with
Co.,
bell Construction
430 propriety any prior Also, rate of
The road to the accident. is it speed any note, num by important cannot be fixed definite to ap- the Simon vehicle hour, proached is a rea per difficulty ber of miles but what passed without dependent necessarily is speed by the Jeep sonable both driven Mrs. Woodland surrounding situation and largely by Woodland, prior tractor driven a motor colliding The driver of unlighted to projecting circumstances. with the required to in the dark is vehicle at corner of the re- night After the situ viewing record, with exercise care commensurate where was Simon might reason driving A be at speed speed ation. less than miles 60 ordinary hour, circum per under proper able and we find that the evidence does improper may excessive and support stances speed conclusion that such view of the negli- where the driver’s was excessive and constitute with, where he any way gence is in interfered on his part. the head partly by
is blinded confused or Other or related rules of lights approaching vehicle law of an should be considered respect with where he light, a street or sunlight, or dust, drive smoke, or maximum through speed; rate fog, driving that is: whether driver snow; negligent windshield is covered in failing or his keep lookout, a proper frost, speed is sleet, snow, or rain. The whether a driver is negligent car be places failing keep excessive whenever vehicle control, under yond of the driver. Schaller whether control driver negligent 51, in failing stop 59 40 N.W.2d Bjornstad, N.D. turn to v. right within the assured clear range of (1949). his vision. Meier, In Tschosik v. Law 3rd Blashfield Auto In 2 N.W.2d (N.D.1961), Meier assigned 105.3, (1965), it is stated: p. Ed. § specifications error, essence, application to be con- circumstances “Among the these three rules in support or not determining fact whether contributorily sidered Tschosik was negligent negligent. speed particular rate The facts Tschosik nature, width, grade Meier case are the are similar to those in the case roadway, road, at bar. condition of The night accident occurred at conditions, gravel weather on a locality, traffic road which was 18 feet wide. familiarity conditions, with Tschosik driving the driver’s in a southerly di of the car.” road, rection at a speed the condition per of about 35 miles hour, northerly and Meier was in a driving A perusal of the record reveals that on the direction at a speed. slow rate of night accident, sky partly Tschosik passed vehicle Meier’s tractor overcast; it was dark the time of the any without difficulty, but collided with accident, rain, but there was no snow or protruding unlighted side of silage box fog; visibility was good. road which was towed the tractor. dry, any but did traffic not cause dust. sup This court found that the evidence gravel farm-to-market road was 24 ported jury the verdict of the and concluded feet wide level in both directions so conduct of Tschosik was not such that the view was unobstructed for vehicles guilty that it could be he was said that approaching the scene of the accident. The contributory as a matter tracks, road four contained distinct two law. for each traveling op- lane traffic directions, posite gravel case, and without a In instant the evidence does ridge on the road support which would obstruct conclusion failed Simon Simon, fact, travel within those tracks. Mrs. control. In under Woodland, contrary. did testified the evidence is to the Simon *9 they any did not passing see other the any vehicles on not have in either difficulty
431 Woodland, testi- tractor. Woodland driven Mrs. the Jeep passed the or the then passed tractor by Woodland, vehicle his fied tractor driven ac- that Simon’s feet, and of about five cident upon with clearance occurred. Based a not hear accident, that he did he testified the vehicles after also the mark- to prior or skid noises ings roadway, testimony brakes on sound of Woodland, collision. attempt did not impact Simon to turn his right apply automobile to the or even to drive rule one must The facts, Considering his brakes. these two stop within to be to speed a as able at such conclusions be either can drawn: Simon is rec distance ahead clear assured proper to maintain a in that failed lookout duty a driver. ognized imperative as an seen; he did not what see he should have Treiber, (N.D.1956); Doll 76 N.W.2d v. placed or Simon was a such situation 51, 40 N.W. Bjornstad, Schaller 77 N.D. v. that no matter how in main- careful he was where applies (1949). This rule 2d 59 proper a lookout it been taining would have as large such objects, with cases deal projecting impossible him see seen, vehicles, on easily other motor until it too late anticipate driver must open A road. a take action to collision. evasive avoid carefully unlighted, or lighted objects, such The latter conclusion is more reasonable guard parked, or negligently or driven oc- under the circumstances. The accident see must with them. He against collision dark, and, night. It was where curred person would aas careful such obstruction approached vehicle one vehicle another supra. Bjornstad, v. have seen. Schaller direction, coming opposite both from applicable rule is not We feel illuminated, lights having their vehicles There bar. case at in the to the facts shining range directly vision behind traveling a vehicle where quite a difference nearly exception headlights was An zero. large awith collides direction same be- objects be seen would be where could path directly in the object discernible properly illuminated they cause traveling are travel; and where haystack mover lamps or reflectors. The col one vehicle opposite directions or reflectors equipped lamps from projecting something lides with by a driver which could have been seen being towed a unit other approaching opposite from the direction. vehicle. other baled, hay matured silhouette of re- not be headlights of the shining behind vealed maintaining prop rule conditions, especially these tractor. Under er is not duty lookout is that driver’s did haystack mover projecting plain where the seeing only limited to what give any lamps or reflectors sight not have duty highway; on but he has corner, warning protruding Simon’s plain sight what is in within see reasonably prudent vision, range lookout was manner of his the same toas not such man, and his conduct was reasonably prudent in the man part. For care, ordinary import similar under exercise said, be- circumstances, argument might be purpose of should have seen. Wolf Inc., farming Lines, resided in a commu- 113 N.W.2d Simon v. Northern Tank Express second King nity, that he that the Railway v. where assumed (N.D.1962); ; tractor, Inc., should have (N.D.1961) vehicle was a he Agency, N.W.2d 509 anticipated Kettwig, (N.D.1955). Moe tractor 68 N.W.2d However, equipment of excessive width. public one who travels has that, he testimony Simon’s highway will to assume that such approached coming from the two vehicles unlawfully, or in such obstructed direction, lights he opposite dimmed injury he vehicle, him passed Jeep the first manner as to cause while himself is in the exercise *10 of reasonable [*] [*] [*] [*] [*] [*] Yes, Weber, “A I 118 N.W.2d did. Spielman v. care. Frendberg, (N.D.1963); Umland you did “Q And what find ? (N.D.1954). N.W.2d 295 anticipate law, would not “A which tied Simon There was a skid mark tractor, driving a Woodland, position who was position of the —final unlighted length, be no get
would I didn’t vehicle. been not have should mover which distance the skid mark because of night, area. traffic and n —foot highway in the traffic left of the laterally projected I was able to But establish Simon, tractor, upon main- especially where relationship skid mark in lookout, not see would taining proper roadway. [Emphasis added.] it would path travel until it within “Q they And in relation to where were to avoid to take evasive action late be too itself? road an accident. They “A were 11 feet from the west also urges that Simon was shoulder. driving his vehicle over the center line of “Q you’re And speaking now of roadway and that Simon’s plaintiff’s left or wheels accident. ? geo- Woodland builds his case around graphical argument center His line. is “A That correct. upon also based a measurement then, “Q course, And addition top wide, 26.6 that, overhang would be the whatever and not measurement 24-foot was of by there the fenders? highway patrolman. may made It be noted that the 26.6-foot measurement some, yes.” “A There graveled road, includes the portion of the Then, cross-examination, testified: he plus grass-covered up shoulders to a point at portion which the level Now, “Q you Willenbring, Mr. I think begins shoulders slope toward the ditches. by you indicated that arrived the time 39-10-09, N.D.C.C., Both 39-10-08 and §§ people had been there various other “roadway”, use the term defined area; isn’t right? 39-01-01, N.D.C.C., subsection 52 of § “A Yes. portion improved, of a highway de- or signed, ordinarily used for vehicular over, “Q And the area had been walked travel, exclusive of the berm shoulder. you see scuffed could where had been However, notwithstanding this incorrect people; over ? assumption, we must determine from the vehicle, evidence whether Yes. “A Simon’s impact, time was over the center of the “Q hay in the piles there also Were roadway. It has been contended that a particular area of this collision? patrol- measurement taken man shows that Simon’s vehicle was over off of the “A There were bales knocked the center of the traveled stack. Willenbring’s Patrolman testi- matter, was, “Q practical And it aas mony as to this measurement is follows: marks; any difficult determine skid Now, “Q coming again, you back did isn’t that correct? some find skid plain- marks
tiff's vehicle? “A Yes. *11 Well, estimation, “A was that there if it was an you've I testified "Q But say just the west shoul- about the width of that 11 feet from skid mark pulley, suppose is I der; right? about 15 that is inches, possibly 18 I don’t know.” Yes, was visible this was made —this “A Willenbring, highway patrol- Robert the tractor. ahead of man, did not of the take measurement to, “Q That would somewhere overlap, but testified as follows: words, of the tractor? to the south other Now, “Q point with reference “A correct.” That impact vehicles, you did two testimony it clear that this From look at that? point of im- mark was south skid “A Yes. we are unable far south pact. How Therefore, this based determine. “Q And you give your can us best point fact that and the conclusion estimate as how much of two ve- indicator be a more accurate impact would words, together; hicles came in other inwas vehicle where Simon’s
to determine how far to the west from the left rear por- traveled center relation to hay corner on you could find re- necessary to roadway, it tion imprint plaintiff? of the vehicle of the view that evidence. “A hay mover struck about two concluded above We feet the left corner of the— ex- haystack mover front corner of “Q overlap as So there would be and, lane inches into Simon’s tended 19.8 together the two came about two ? fact, only evi- other together with reveal where Simon’s might dence “A Yes.” in relation to the center vehicle was Woodland, Erhardt, Matt testimony highway patrolman L. who roadway, is the accident, Bower, but not Willenbring, and Erhardt. scene reporting charge investigating over- testimony to the Woodland’s same, testified as follows: lap vehicle and of Simon’s “Q you Did make anv measurements mover is as follows: haystack mover, itself ? is, car, “Q was the And where “A I did one. relation to plaintiff, the car mover, go it in did how far “Q that measurement What was it collided? mover when you ?made Well, fifteen, six- “A a foot to itself, por- “A That was stack inches, there. teen somewheres around itself that was frame tion stack itself —the vehicle connected with inch- “Q say to sixteen you Did a foot overlap.” es? overlap was Then he testified that the 1.9 “A Yes.” say: then on to feet and went L. follows: Bower testified as John Now, any damage to the “Q there beyond this measure- “Q you far in feet tell us how Could point of 1.9? ment you car would estimate mover, scrapes two and scratches in on “A where Just together? pulley left of the itself.” came vehicles, that, overlap of the two based on such road and under this evidence, foot, or ranged practice, from one roadway, on this the center of the inches, above, inches. two or 24 might discussed lie within one about of 24 inches the maximum those Assuming tracks. inches, feet, or 1.65 19.8 subtracting the We find that the sole which Simon’s limit the extreme the collision between Simon’s vehicle over center been could have hay- the left of Woodland’s *12 4.2 inches. Consider be would of stack failure mover was the Woodland of of 1.9 Erhardt ing the measurement place on lamps or reflectors the extreme and measurement) only actual (the mover, left projecting edge of his feet, vehicle 1.65 Simon’s subtracting warning as to to a a give so driver of inches, foot, of be possibly could a 25/ioo opposite di- approaching vehicle from the ig line. over the center rection, improperly that testimony of Patrolman Willen- nore the hay- night on highway overlap. Both bring reference width, mover of excessive which stack into fail take of calculations these line of over center projected flattening spreading
consideration the roadway. of the portion the traveled as the result fender of the car damage causing thus wider impact herein, For stated we conclude reasons necessarily indicating the ac marks, not has failed to sustain defendant impact, which prior to overlap just tual negli proof the burden of that Simon was less, considerably overlapping would or, gent negligence that his negligent, if fact in view of especially enough prox significant to constitute be 6 inches approximately pulley projected As we imate cause of the collision. yond front corner the left held previously reformed the instruction Bow Both Woodland’s frame. con proper relative to given jury to be viewing the upon testimony is based er’s tributory negligence so as to mislead provides damage to the Simon jury believing negligence into con of Simon’s a better determination tributing degree slightest in the to an ac in to the center relation finding may cident be sufficient basis for are measurements patrolmen’s Both cause, wary proximate should also be we damage to the upon based scratch legal quicksand as into such falling legitimate out a would cause us to throw only to contributing
claim Nielsen, v. slightest degree. Willert circumstances, Under these ; 1966) 26, syllabus (N.D. N.W.2d 4¶ especially light in of the fact that Simon (N.D. Spalding Loyland, 132 v. N.W.2d met passed both Jeep and the trac 1965). tor difficulty, without even if could we
assume that Simon’s vehicle was over the inches,
center roadway by Having judg determined several reversed, we being find should be that his over the center ment the trial court line, 39-10-09, question of although necessary it is violation to consider § N.D.C.C., Supreme damages. Dakota was not a The North Miller, Court, 136 N.W.2d fact over a v. accident. The Wanna center line of the of a 563 (N.D.1965), traveled remanded a case graveled roadway permanent trial without a court for the determination of da marking mages as to location center adhere to enun alone. We rule line basically be an unusual standard ciated This court is im case. pose where, driver, especially appellate on an since the court and court trial graveled roads, decision, not yet drivers the worn has made its the case follow tracks it for made the continuous travel should be consideration. returned damages sion may plaintiff’s determine which resulted in the court in- The trial during juries. already submitted It therefore dismissed plaintiff’s from the evidence trial, trial on claim. The findings a new of fact or entertain trial op- appreciable When court are damages weight alone. entitled to on issue court, any appeal, novo, district by the triable de tion is exercised this court. may ap- aggrieved Campbell (N.D.1962), party deeming himself Beaton 117 N.W. thereon judgment entered 2d 849. peal from the any other judgment. as from majority have found that the sole dissent filed discussing the Without proximate cause of the collision in- detail, observa- make this we this case jured plaintiff consisted of three acts tion : When the width of negligence part the defendant. feet,
mover, approximately which was They 17½ are as (1) improperly follows: mov- length with the into consideration is taken ing night mover, is 26.1 of such width; mover of (2) excessive failure to *13 the that Ralph testimony of the place reflectors, lamps, or on the extreme 9 least at was loaded hay the mover projecting haystack mover; left edge of the the platform of and that the high, bales (3) and haystack causing the mover were the bales haystack mover on which project over the center line of the traveled ground, the feet above was 2.7 loaded portion of the roadway. The majority have 12 to from hay weighed the loaded that plaintiff also found that the his auto- drove would a farmer tons, that is incredible it partially mobile over the center line of the night highway traveling on a be traveled roadway the con- of but (west) its mover with haystack a that, clude if negligence, this was it nearly feet ditch wheels dual significant enough proximate to constitute a probability great of the because depth, They cause of the collision. premise this only shifting load conclusion on finding their parties that the the tractor but mover haystack the traveling on graveled roadway with- overturn. permanent out as marking to the location of therefore, and, a center line drivers follow the dismissing claim judgment The the by worn tracks made the continuous Simon, is reversed plaintiff, Clement of travel practice, “under this court district the is remanded the case the center of roadway, the as discussed damages in accord- of determination above, might lie within one of those tracks.” opinion. ance with reasons, they For these conclude that the defendant has failed to sustain the burden KNUDSON, JJ., con- ERICKSTAD proof of that the plaintiff’s negligence con- cur. tributed to injuries.
TEIGEN, (dissenting). Chief Justice agree. The record in this case I do not worn the location the does not establish ac- injury personal This is a dissent. I except by as travel made continuous tracks without the court tried to tion which photographs from they may be observed from taken has been appeal and an jury The of the accident photographs evidence. under court Section to this judgment the balanced, well- portray evenly scene 28-27-32, N.D.C.C., for trial anew of roadway showing sets of maintained two case. questions fact in the entire equi- appear These tracks to be tracks. roadway. court, edge had the benefit each trial distant from The they introduced measure- the witnesses No evidence seeing hearing trial, parties tried these The action was ment of tracks. at the found both testified theory center geographical that the that the negligent and on the had been line main the colli- also the center line was of each was feet state, geographical over the roadway. located about To portion of traveled 1½ and the rear left corner have, center line the center of the majority haystack was located 7 feet mover those one of “might lie within roadway geographical center line. The evidence speculation. I find tracks,” obviously is haystack establishes that mover such an to base upon which evidence no parallel center traveling tractor were inference. roadway line of the before the accident. left corner The front pivoting movement Because of geo- feet east of the was about mover 1½ when its left mover struck on roadway after line of center graphical automobile, by plaintiff’s corner the accident. This following it came to rest the ends mover moved by made upon measurements fact is based Therefore, may opposite directions. patrolman. This also highway state logical more reconstruct the position which the ma- approximate mover before hay- side of the jority found entire adding the accident distances of in when collision stack mover to be left front and rear mover hay- majority found occurred. dividing parallel driven stack Thus, plus this sum 2. feet 10½ road, line, the center feet over 1.65 2, equals equals and divided 28½ majority the time the collision. 14;4 point feet. This feet west 2¼ failed to take into account that the geographical center line of the impact caused the force of not, figure accu- perhaps, entirely pivot the left cen- toward on its rate for *14 the the force of reason trally located the acci- Following wheels. plaintiff’s may automobile also have driven dent, haystack the mover was standing haystack the defendant’s tractor mover and angle, southeasterly, facing de- the backward distance. a short tractor, fendant’s it to which was attached The drawbar, reconstruction of the the by a of facing southwesterly. was equipment upon roadway defendant’s Thus the the the movement of front end of the accident, above, haystack before the as set forth rea- mover left pulled toward the the sonably harmonizes end with other measure- rear of the also tractor toward the left. by highway patrol- ments the state Because the made haystack mover was attached man. These the a drawbar measurements relate to tractor, to the rear end of the location of end after the rear of the the front of the tractor tractor and the front of the haystack the It vari- accident. also harmonizes with together mover moved in the same photographs ous direction and introduced in As the evidence. same In distance. other words, earlier, impact I the the stated force hookup tandem of the of the tractor haystack haystack caused the defendant’s mover tractor and caused these imple- two disputed jackknife. jackknife. ments to mover to This haystack The mover had graphically portrayed photo- two sets of by the dual wheels which were graphs located in about The midway evidence. tractor did and were set in about pivot haystack feet as from did the the its It mover because pivoted sides. on its 2½ centrally located tractor had two located rear wheels. wheels at the Thus the rear end haystack of the front, and two wheels located at its mover where- moved toward the right and haystack the front the mover had axle end one with moved toward the left. The highway the patrolman centrally wheels located. The of force measured the distance haystack from the of the mover pivoting left front of movement haystack the mover to the of tractor to edge east caused the wheels the of the rear roadway. This distance slide, skid, the left and the front was feet toward and the dis- 10½ tance from its the relatively rear stable on wheels to remain corner to the east edge of the acci- roadway Photographs evidence was 18 road. feet. Thus the left front front right corner that the clearly show dent scene mover, when it came to at the extreme rest after the was accident, tractor wheel was
437 roadway edge the the be- after the west of 24-foot the 24-foot edge of fore the accident. also fact is confirmed collision. patrol- by the taken measurements evidence, to foregoing In addition the the from the distance measured man. He there were the were two witnesses who outside of roadway to the edge east of still while the were accident scene testi- He the tractor. wheel of left front position. posi- testified They also feet, which that this distance fied 18½ hay- right tion of the dual wheels of the geographical of point 6)4 feet west is a relation stack the accident in mover after the outer distance between center line. roadway. of portion maintained tractor front wheels edges mover Each had looked under Therefore, feet, adding 6 feet, 5 5 inches. right wheels observed that dual feet, inches, feet, 11 inches, equals S 5 6 standing inches, that the outside establishes 11 roadway. witness esti- shoulder of One tractor wheel of the front mated duals were 20 inside edge of the extreme west one inch within portion inches from maintained important roadway. facts are These roadway, the dis- and the other estimated determining location tance inches. The from 20 24 roadway prior respect outside dual wheels were feet 2½ equipment The defendant’s the accident. from outer mover and edges stack parallel with the center being moved Therefore, 1 duals were feet width. ½ line before the accident. appears logical that the sum conclude had a width. It mover was 17.5 given of measurements subtracted above drawbar in the center attached to the (17y2 from the width the stack mover Therefore, tractor at its rear center. estab- feet), equals the distance the stack mover point taking one-half of the lishing a over the maintained extended tractor, 'of equaling width the front roadway, measured the west feet, inches, 2 extending line 8½ Thus, feet, plus inches 20 2½ point to from that the rear of the tractor feet, feet, equals plus 4 inches. Sev- 1 ½ attached, where the mover was feet, enteen and one-half feet minus and adding figure to that 9 inches *15 feet, inches, inches, equals dis- 11 10 the (one-half feet, of the width hay- 17.5 of the over the projected tance the stack mover equals mover), stack 11 inches. 5½ roadway. west of the This is less This the approximate would be distance of than roadway, of the which is one-half edge the east haystack of the mover from feet in measured width. edge the west roadway. of the majority their The have based calcula- alluded to to the evidence right In addition rear by tions a rib made the on mark above, indicate set of measurements point another a starting wheel of the tractor as one-half haystack that the mover was its posi- the conclude this is mark evidence of roadway the time of the accident. prior of the tion of the tractor to the accident. The dual under the center of the They wheels give any weight have failed the to to feet in mover were located agree evidence I have alluded to. do not I 2½ edges the outer the of mover. the rib the evidence mark establishes of in The dual wheels feet width. prior were this mark as the of tractor position the ½ prepared by engineer, An exhibit a civil to accepts prem- If the accident. one this investigated ise, who accident the scene explain I wonder how does one that the date, later in was introduced evidence. It right posi- front wheel of the tractor was edge right shows that the inside the dual immediately adjacent the to tioned wheels of the edge roadway the even acci- after shoulder feet edge west of the west my dent. It is opinion that the rear wheels 2½ roadway. places This evidence east pulled by the tractor were the left from stack mover and that rib mark was 28-27-32, N.D.C.C., statute Section sideward movement by the
made normally referred to the “trial de left pulled to the itas tractor statute, part, pro- novo” statute. This haystack mover. movement of pivoting : vides position opinion I am of upon fact weightier a much front wheels supreme try “The court shall anew inference as an which to base questions specified of fact in the state- than the accident tractor before case, appellant if ment or in the entire accepted the rear wheel mark rib case, and demands retrial the entire
majority. finally dispose of the shall same whenever trial, justice can be done without a new evidence me that above appears It my modify shall either affirm It of this case. is determinative judgment judgment or direct a new to be driving defendant was that the opinion entered the district court.” mover on his one-half tractor defendant agree that the I appellant in this case has demanded highway, moving, upon negligent a trial of the entire case in this court. width in illegal load of excessive circumstances, such Under appears it me Although it would absolve nighttime. that, grant trial, unless we new do illegal moving an him the violation of justice this court shall “finally dispose of load, it was also the same” and “shall either affirm or upon wide load. This lights clearance modify the judgment or direct judg- a new however, proximate was not negligence, ment to be entered in the district court.” injuries. plain- plaintiff’s cause finding includes the damages. find I corner tiff collided with the no provision in the statute which authorizes agree I the defendant’s this court to direct the lower court to make majority plaintiff finding new on a fully matter which was line over the center driving submitted to it but on it did not find center but find that he was farther over the because dismissed the action. The “de majority. line indicated Had than novo” statute does not allow this court to upon the plaintiff driven his automobile grant a new states, trial for this reason. It roadway, half of no collision part: have occurred and the plaintiff would “In actions tried provisions under the injured. my not have been It is conclusion section, failure of the court [trial] plaintiff that the has failed to sustain the findings make all the issues proof negli- burden of that the defendant’s the case shall not ground constitute a gence acci- granting a new trial or reversing If, however, negli- dent. the defendant’s judgment.” 28-27-32, Section N.D.C.C. wide, gence (the unlighted load) was *16 proximate plaintiff’s injuries, provision I find no in the statute which my opinion is then plaintiff’s that the allows this court to decide one issue on injuries negli- resulted from the concurrent appeal taken novo de and remand another gence parties of both the neg- that the issue to the trial court for determination ligence of each was the without new trial ordered. be I plaintiff’s injuries. lieve that the onus on this court to deter damages mine the amount of from the evi For these reasons I would affirm the dence of record in cogni am case. I judgment of dismissal. zant of Miller (N.D.1965), Wanna The majority reverse judgment 563, in N.W.2d which we made similar dismissal and remand the case to the dis- disposition, erred in but feel that we so I trict court for a determination of damages. perpetu and the error should not doing The case fully tried to the district court ated. and evidence question of damages was adduced. appeal STRUTZ, J., taken concurs. under