Steinke v. Northern Telephone Co.

BeoNSON, J. In an action for personal injuries plaintiff recovered [435] a verdict for $12,230 with interest. Defendant has appealed from the judgment and the order denying judgment non obstante or, in the alternative, for a new trial. The cause was before this court heretofore upon a demurrer to the complaint. See 46 N. D. 10, 178 N. W. 965. The facts,* as alleged in the complaint, are fully stated in such former ■opinion. The law of the case was fully and well set forth in such opinion. In the complaint negligence was predicated against three defendants.At the trial it was stipulated that the appellant-defendant would pay any.liability arising from the negligent acts of the defendant Northern Telephone Company. The trial court, at the Conclusion of the evidence, dismissed the action against defendant Halvorson. ■ Defendant challenges the sufficiency of the evidence to support the alleged facts upon which this court formulated the law of the case and found a cause of action to be stated. The pertinent inquiry, therefore., is whether the facts proved support the facts alleged. Defendant maintains that the evidence fails to show that there was any flying snow or that plaintiffs vision was in any way obscured. Plaintiff, however, testifies to the contrary. In response to a question by defendant’s counsel, viz.: “As a matter of fact there was not enough snow to affect your vision at all ?” plaintiff responded: “It was blowing. It was a blustery day. It was very stormy and snow in the air. I do not remember any moro. It was a stormy day; the snow was in fbo air something like yesterday, hard, loose snow in the air.” The defendant contends that the evidence shows that the plaintiff was not misled at all by the similarity in appearance of the two doors. One, into the meat market, and the other, into the cellar. However, we are of the opinion that the verdict finds ample support in the.evidence concerning the allegations of the complaint that plaintiff opened the door into the cellar believing it to be the door opening into the meat market, in the same building, adjacent thereto by some 30 feet and similar to it in appearance. Defendant further contends that the complaint simply describes this cellar door in most general terms while the evidence discloses that such door had a large transparent glass through which could be seen the cellarway and basement stairs; that the basement door •was opened by turning a doorknob while the meat market door was opened by pressing down a thumb attachment; that, furthermore, such [436] basement door was held closed by a six pound weight against which force had to be used in order to open the door. Such facts in the record do not alter the law of the case applied upon the alleged facts. Such evidence afforded some corroborative proof of plaintiff’s mistake through the similarity in the doors involved; otherwise, such evidence affected the question of plaintiff’s contributory negligence. Defendant further maintains that the evidence discloses familiarity by the plaintiff with the premises. This again concerns the question of contributory negligence. Defendant maintains that the evidence discloses the true facts concerning the condition of the cellarway and the basement door which were not alleged in the complaint and upon which there can be found no violation of the city ordinance. This is covered by the opinion of this court in the former case and properly, in our opinion, the trial court submitted to the jury, as we instructed, the question of whether thé ordinance had been violated by defendant. Defendant complains of the instructions which submitted the questions of negligence and contributory negligence in general terms and in an indefinite manner, and, which refused the requested instructions of defendant. 'On examination of the instructions we find that the" trial court properly instructed upon the questions of negligence and contributory negligence and followed specifically, in its instructions, the law of the case as laid down by this court in its previous opinion. Properly, the trial court denied defendant’s requested instructions which assumed, directly or indirectly, as a matter of law, the proper construction and maintenance of the cellar door and cellarway and plaintiff’s contributory negligence in opening such cellar door and falling into the cellarway. Upon the record, the question of defendant’s negligence and plaintiff’s contributory negligence were wholly questions of fact for the jury and were properly submitted to the jury. We are satisfied that the verdict may not be declared excessive by this court. Between the time of the injury and the trial nearly five years elapsed. The record discloses that plaintiff was severely and permanently injured. She has spent large sums of money in trying to recover her health and former physical well being. We are of the opinion that defendant has been accorded a fair trial [437] without the occurrence of any prejudicial error. The judgment and order should be, and are, affirmed with costs. Birdzell, Oh. J., and Grace and Christianson, JJ., concur. EobiNSON, J., dissents.