*1 circumstances, agree we lature they tion. Under these intended be tried criminal action the trial court that the contestees did and not a civil contest with of election. 16.1-10-06, violate Section N.D.C.C. The district court is affirmed.
MESCHKE, J., and VERNON R.
PEDERSON, Surrogate Judge, concur.
LEVINE, J., concurs in the result. PEDERSON, Surrogate R. VERNON Ricky WANNER, James a.k.a. Rick J. Judge, sitting GIERKE, J., place Wanner, Appellee, Plaintiff and disqualified. WALLE, Justice, concurring VANDE TRUCKING, INC., GETTER specially. Appellant. Defendant and portion I concur in majority No. Civ. 900285. opinion which concludes the district jurisdiction court lacks to hear civil election Supreme Court of North Dakota. contests which have as their basis the viola- March Corrupt Practices Act. As the observes, majority opinion at common law right public
there to contest a elec-
tion in a court because elections were political government branch of the beyond judicial
and were control. Section
12 of Article IV the North Dakota Con-
stitution, approved by the electors of
this State on November [see
N.D.Laws, ch. modifies concept 707]
slightly specifies house is “[e]ach judge qualifications of its mem-
bers, but subject election contests are provided by
review as law.” precedents
In view of the historical
which are continued in this constitutional
provision, judicial we should conclude the government
branch jurisdiction has
entertain contests of only election when the
legislature has authorized us to do so unequivocal direct and action. Timm v. Cf.
Schoenwald,
Where substantial doubt exists as to legislature
whether or not the intended the
judicial jurisdiction branch to have to hear
election contests we should not rationalize upon
a basis which to conclude that we jurisdiction.
have Chapter 16.1-16 is not unequivocal. Nevertheless,
direct and if I apply ordinary
were to standards of
statutory construction, agree I with the
majority that in involving matters the viola Corrupt
tion of the Practices legis- Act the *2 Montgomery,
Douglas W. Rennie of Ren- Johnson, Cincinnati, Ohio, for defen- nie & appellant. Appearance by Fred dant Whisenand, Jr., E. of Mclntee & Whise- nand, Williston. Office, Dic- Wanner suit Truck- H. Ficek of Ficek Law filed
Vince
ing,
employees
alleging that Getter’s
kinson,
had
W. Moench of Evans &
and Dale
negligently rigged and hoisted the travel-
Bismarck,
Moench,
plaintiff
appel-
ling
assembly,
allowing
thereby
lee.
*3
assembly
causing
and
the
to shift
derrick
special
to vibrate. The
returned a
WALLE, Justice.
VANDE
finding
negligence
verdict
the
on
Wanner,
defendant,
assigning ninety percent of the
appeal by
is an
the
Get-
This
Getter,
and
percent
to
ten
of the
Inc., from
Trucking,
a
ter
to “others.” The
awarded
County
Court for McKenzie
en-
District
$700,000
damages.
in
Wanner
plain-
the
awarding
on a
verdict
tered
tiff,
Wanner, $700,000
injuries
Rick
for
ap
Getter raises several issues on
proximately
by
neg-
the defendant’s
caused
peal,
primary
being
the
issue
whether the
denying
and
an order
its mo-
ligence
from
court
its
in allowing
abused
discretion
judgment notwithstanding
for
the ver-
testify
to
an expert
William Bateman
as
or
N.D.R.Ev., governs
dict
a new trial. We affirm.
witness. Rule
the
admissibility
expert testimony
pro
fall
injured
Rick Wanner
in a
from
vides:
accident,
oil
the time
an
derrick. At
scientific, technical,
“If
spe-
or other
employed
Wanner was
as a floorhand for
knowledge
cialized
will assist the trier of
Drilling,
company.
oil drilling
Dual
an
fact
to
the
understand
evidence or to
completion
a
Upon
drilling project,
Dual
issue,
quali-
determine a fact
a witness
Trucking
Getter
contracted with
the
expert by
skill,
fied
knowledge,
as an
transport
site.
of a derrick to another
Be-
education,
experience, training,
may
or
transported
being
cause the derrick was
testify
opinion
in the form an
thereto
distance,
a
only
short
a “field move” was
or otherwise.”
employed wherein the derrick
moved
two-part
for the admission of
test
ex-
cross-country
left
while
intact.
testimony is
or
pert
“whether
not such
move,
preparation for
In
the field
the
testimony
will assist the trier
fact and
position.
placed
a horizontal
derrick
qualified
the
whether or not
witness is
crane,
part of
preparation,
As
the
owned
expert.”
Sebelius,
an
Patch
N.W.2d
by
operated by
Getter and
one of its em- 637,
(N.D.1984).
The determination of
ployees,
to
travelling
was used
hoist a
to
expert testimony
whether or not
admit
assembly
the
block
inside
derrick
order
rests with the sound discretion of the trial
“top”
court,
it
to secure
to the
of the horizontal
appeal
and will not be reversed on
travelling
assembly
derrick. The
court
unless the trial
has abused its discre-
travelling
Apartments,
by
Victory
consists of a
block connected
tion.
Park
Inc. v.
Axelson,
joint
or “knuckle” to a
hook.
swivel
12,000
14,000
weighs
assembly
entire
to
Getter
that Bateman
asserts
pounds. In
to
assembly
order
secure the
to
improperly
present expert
to
allowed
testi
derrick,
employees,
Dual
Wanner and mony
subjects
on three
which did not assist
Andreas, positioned
top
Ben
themselves on
First,
the trier of fact.
Bateman was al
of the horizontal
derrick. While
crane
give
opinion
to
lowed
an
on the cause of
assembly
position
held
to be secured
the accident. Bateman testified that
by
employees,
portion
the Dual
the hook
shifting
derrick was shaken
assem
assembly
shifted downward and the
bly thereby causing Wanner
fall.
Getter
Wanner,
vibrated.
derrick
who was stand-
point
contested,
that this
was not
contends
ing on a six-to-eight-inch-wide
beam on
testimony
and therefore Bateman’s
could
of the derrick
his
lost
balance
fell
not have
Bateman ex
assisted
feet,
approximately thirty
however,
landing
testimony,
headfirst
panded on that
ex
outrigger
pressing
crane.
mud1 on
inverted
Andreas,
According
testimony
of Ben
inverted mud is mixture of diesel fuel and
slip
you
him
would want to do whatever task
did not cause
boots
Wanner’s
minimize,
derrick,
you’re doing
if not elimi-
point
appar-
which was
so as to
from
nate,
possibility
harming
part of
testimo-
someone
ently
While
contested.
damaging equipment.”
argues that
Bateman did
repetitious,
been
ny
have
this standard is
and the effect of
on the cause of the fall
erroneous
provide information
unduly
permitting
fact.
this
was to
have assisted the trier of
which could
prejudice Getter.
Second,
Bateman was allowed
testimony may
Bateman’s
have
er-
been
used
Getter to
testify that the method
fully responsive to a
roneous but it was
assembly was not
the safest
hoist
clear
asked
Getter’s counsel.
argues
method available.2
*4
party objected
Neither
to nor made a mo-
there was a safer method was
fact that
testimony.
tion to strike the
coun-
Getter’s
there was evidence that
irrelevent until
dangerous question
sel asked a
on cross-ex-
applicable
standard of
Getter violated
amination and cannot now ask this court to
safer,
question
The
of a
alternative
care.
question simply
retract the
because it did
jury,
may
considered
method
be
response.
not elicit the desired
See State
however,
determining
whether the meth
233,
Haselhorst,
v.
218 Neb.
person ordinary would utilize expert testimony. ance of the use of See particular utilized method Oberlander, 460 N.W.2d Oberlander assembly. rigging hoisting (N.D.1990); Olhauser, Stein v. 211 N.W.2d may A
Finally,
quali
Getter asserts that Bate- 737
witness
be
skill,
testimony regarding
expert by knowledge,
expe
man’s
the “standard
fied as an
rience, training,
should not have
of care” North Dakota
education. Rule
permitted.
When asked
Getter’s N.D.R.Ev. Bateman had a
been
Bachelor
Sci
attorney
degree
engineering.
on cross-examination about
ence
in mechanical
care,”
applicable
Bateman
Company
“standard of
tes He had worked for Shell Oil
for
twenty-five years,
tified
“the
of care would be
and had
standard
worked as a
drilling process.
provided,
site
of care. The instruction
earth and is used in the
standard
part:
strategies
apparently several lift
2. There were
" ‘Ordinary negligence’ is the lack of ordi-
assembly
available to hoist the
the der-
inside
diligence
nary
required
care and
the cir-
attempted
support-
rick. Getter
ing slings
the lift with two
Ordinary
diligence
cumstances.
care or
assembly.
attached
the block
Bate-
person
ordinary pru-
means such care as a
have been
man testified that it would
safer to
usually
slings.
dence
exercises about his own affairs
use three
ordinary importance.”
provided
3. The
with an instruction on
ordinary negligence
requi-
contained the
which
actmg in
years.
negligent
by walking
manner
consulting engineer
for eleven
safety profes-
top of
There
a “certified
the derrick.
was also testimo
Bateman was
ny
safety
rig-hands commonly
a member of several
walked on
sional” and
is also a
the derrick. Evidence of
engineering societies. Bateman
custom
be
engineer in Texas and used as evidence that conduct meets
professional
licensed
Although
was not
Bateman
fa-
standard of reasonable care under the cir
California.
rigging procedure for a
miliar with the
cumstances. Tom Beuchler
Const. Wil
liston,
(N.D.1986).4
travelling
assembly prior to
com-
block
Given
action,
studying
custom,
this
mencement of
after
not
evidence
this
it was
unrea
reports,
depositions,
investigation
accident
sonable
determine Wan
photographs,
safety manuals and
crane
ner’s behavior met the
standard
reason
materials, he
to form the
other
was able
positioned
able care as he
himself to secure
opinion that
did not use
safest
ample
assembly.
heard
evi
given the
available method. Getter was
which
employ
dence
indicated that Getter
argue
for this
opportunity to
that the basis
responsible
were
for rigging
ees
and hoist
weak,
argument goes
but that
ing
travelling
assembly
and that
credibility
opinion-giver,
to the
failed,
rigging
thereby
somehow
caus
*5
admissibility
opinion.
the
of the
See Victo-
ing
Therefore,
the
say
accident.
we cannot
Axelson,
ry
Apartments,
Inc.
su-
Park
jury’s assignment
negligence
the
that
of
pra.
say that
trial court
We cannot
the
against
greater weight
was
the
of the evi
allowing
by
abused
Bateman
its discretion
and
dence
thus the trial court was under no
provide expert testimony.
obligation
a
to order
new trial.
by
The second issue raised Getter is
by
issue
third
raised Getter
negli
of
jury’s assignment
whether the
damage
is whether
amount of
the
the
gence
clearly against
greater
the
award demonstrates that
was in
weight of
The existence
the evidence.
of
by passion
prejudice.
fluenced
and
An
fact,
negligence
a
of
to be de
is
justifies
of
is
damages
award
excessive and
fact,
by
termined
the finder of
unless the
granting a
when
new trial
the amount is so
evidence is such that
reasonable minds
passion
prej
unreasonable
to indicate
or
as
could
one
draw but
conclusion. Leno v.
on
part
jury.
udice
Olmstead
Ehli,
(N.D.1983).
Wanner’s behavior in suffered bladder derrick, however, along undergone did and bowels. He has several surgeries in body not constitute as a matter of for more cast erroneously equates working law. Getter than six He is to remain months. unable sitting, a “dangerous” standing, lying any length situation with or behavior constituting negligence suffering as a matter of law. time without some discomfort. testimony precluded conducting many While there was some that Wan He is from nor- placed in a daily require ner could have himself safer mal tasks some manual which $700,000 securing assembly, position Although while such labor. awarded is a sum, light not indicate he does considerable of the evidence However, evidence of custom is admissi- mined. Besette Enderlin School Dist. No. ble to upon an establish absolute standard of care which the issue of can be deter- notwithstanding or a new ment the verdict injuries it is of Wanner’s of the seriousness hereby are affirmed. passion as to indicate not so unreasonable on the prejudice ERICKSTAD, C.J., and GIERKE by Getter is wheth- The final issue raised MESCHKE, JJ., concur. its discretion the trial court abused er LEVINE, Justice, concurring specially. on “unavoid- give an instruction refusing to specially my to confirm under- I write requested instruc- Getter’s able accident.” standing questions of doubt about provided: admissibility expert testimony generally that an unavoidable “You are instructed letting it in. be resolved in favor of should not contem- is an occurrence accident purpose of the rules That is so because with- party, either which occurs plated expert is “to make it easier for of evidence party. negligence of either fault or out body trier witnesses to educate the about party injured In the that a event knowledge unfamiliar to the be defined, accident, herein unavoidable Weinstein, Berger, lay person.” J. M. damages from right to recover he has no 13.01 Evidence Manual Weinstein’s § accident, since the party to the any other witnesses). (1990) (expert Doubts about injured by person be requires law expert testimony thus the usefulness of another, negligence of as a the fault or admissibility should be resolved favor right damages.” prerequisite any strong “unless there are factors such as favoring ex- incredibility, surprise time or failing to argues that the effect of clusion.” Id. at 13-8. § 13.02[02] convey was to give this instruction Obviously, danger expert testimo- simply someone was at fault message that *6 willy-nilly simply that it ny admitted will an accident occurred. because commonplace be used to evaluate whole, If instructions read as supplant jury’s independent exercise of jury on all relevent adequately advise the See, e.g., common sense. Scott v. Sears issues, give refuse to it is not error to Co., 1052, (4th Roebuck & 789 F.2d 1055 those requested instruction on additional Cir.1986). However, protection against Anderson, 451 N.W.2d issues. Smith squarely that hazard is in the hands of the instructed 108 The and, judge absent what amounts respon held “[bjefore person can be error, egregious judge’s the trial decision sible for ... stand. should proximate cause of must have been merely opinion jurors While an tells injury. [Emphasis in the instruction.]” helpful, e.g., what result to reach is not instructed that was also “[t]he Kostelecky NL Acme Tool/NL Indus Plaintiff, maintaining an action tries, Inc., 828, (8th Cir.1988), F.2d 830 Defendant, proving has the burden of that, here, agree majority I with the Bate- claim the elements of his the essential subjects did the trier on the man assist These greater weight of the evidence.” methodology. cause and M.C. Carlisle Cf. instructions, in read with the other when (1st Cross, 386 F.2d & Co. v. whole, clearly indicate that Poretti, as a Cir.1967); F.Supp. structions Lanza (E.D.Pa.1982) (expert permitted held liable for Wan Getter could not be 785-86 possible causes of fire since he simply an accident to eliminate injuries ner’s because degree expressed with reasonable requested instruction occurred. Getter’s certainty which aided trier in of scientific and would degree superfluous towas some fire). determining what did not cause understanding of necessarily add to the Therefore, court did not the trial Accordingly, I concur. requested instruc failing give err tion. the trial court and the judg- denying
order Getter’s motion