Findings are helpful but not binding on review, and where they vary from the court's actual ruling, they must be disregarded. See City of Anchorage v. Steward, 374 P.2d 737, 739 (Alaska 1962), for discussion of conflicts between oral decision and findings after trial. Alaska R.Civ.P. 52(a) provides in part:
K.T.E. v. State, 689 P.2d 472, 477 (Alaska 1984).Id. at 477 n. 8 (quoting City of Anchorage v. Steward, 374 P.2d 737, 739 (Alaska 1962)). C. The Superior Court Did Not Err in Denying Fyffe's Claim for Intentional Infliction of Emotional Distress.
Nada A., 660 P.2d at 439 n. 2; Ronne v. Ronne, 568 P.2d 1021, 1023 n. 5 (Alaska 1977). We stated in City of Anchorage v. Steward, 374 P.2d 737, 739 (Alaska 1962), that if the written order is so contradictory to the oral decision "that its usefulness is impaired," a new trial may be ordered if it appears that the trial judge's initial decision was based on an erroneous view of the law. However, given the reasons discussed above, we do not believe that this course is necessary in the present case.
Concerned Citizens of South Kenai Peninsula v. Kenai Peninsula Borough, 527 P.2d 447, 456 (Alaska 1974) (Boochever, J. and Rabinowitz, C.J., concurring on the facts there involved, but expressly disagreeing that oral findings should control over written rulings generally). See City of Anchorage v. Steward, 374 P.2d 737, 739 (Alaska 1962). A majority of the court now believes that, generally, written findings should control.
Regarding the availability of men and equipment, suffice it to say that shortly after the accident, the road in fact was sanded. This does not mean that proof of subsequent repairs is to be admitted as direct evidence of negligence. Cf. Otis Elevator Co. v. McLaney, 406 P.2d 7, 15 (Alaska 1965); Gunsolus v. City of Fairbanks, 391 P.2d 13, 14 (Alaska 1964); City of Anchorage v. Steward, 374 P.2d 737, 739-40 (Alaska 1962). Rather, Alaska's position on this matter comports with the Federal Rule of Evidence 407, which provides:
See Oleck, supra at 292, § 184; 3 Personal Injury-Damages, supra at 142, § 304[b]; and Annot., 15 ALR2d 418 (1951). See also McCormick, supra at 301, § 86. See also Metz v. Great Atlantic and Pacific Tea Company, 30 Misc.2d 258, 215 NYS2d 175 (Sup Ct Trial T 1961); City of Anchorage v. Steward, 374 P.2d 737 (Alas 1962), and Southern Coach Lines v. Wilson, 31 Tenn. App. 240, 214 S.W.2d 55 (1948). Thus, in Ramaswamy v. Hammond Lumber Co., 78 Or. 407, 425, 152 P. 223 (1915), this court held that:
In that case we stated: 374 P.2d 737, 738 (Alaska 1962). (Footnote omitted.)
A Yes. Gunsolus v. City of Fairbanks, 391 P.2d 13, 14 (Alaska 1964); City of Anchorage v. Steward, 374 P.2d 737 (Alaska 1962). See also 2 Wigmore, Evidence § 283, at 158 (3d ed. 1940); McCormick, Evidence § 252, at 543-45 (1954).
Restatement, Torts § 463 at 1227 and § 466 at 1235 (1934). See also this court's views on the kind of conduct which constitutes contributory negligence as set forth in City of Anchorage v. Steward, 374 P.2d 737, 738 (Alaska 1962) and Van Reenan v. Golden Valley Elec. Ass'n, Inc., 379 P.2d 958, 962 (Alaska 1963). Salomon v. Meyer, 1 Cal.2d 11, 32 P.2d 631, 633 (1934); see also Herzberg v. White, 49 Ariz. 313, 66 P.2d 253 (1937), in which the court stated at 66 P.2d 256-257, citing 45 C.J. 1305: "In most jurisdictions when the facts are not in dispute, and the court is of the opinion that but one inference can be drawn from them as to the duty of a reasonable man under the circumstances, the question of whether those facts constitute contributory negligence is a matter of law for the court, and not one of fact for the jury."
Taken together, they present one basic issue: whether the trial court's finding that appellant was contributorily negligent was clearly erroneous. City of Anchorage v. Steward, 374 P.2d 737 (Alaska 1962). On January 18, 1960, at about 9:00 a.m., appellant left the Frisco Cafe on 4th Avenue in Anchorage and started across the sidewalk to reach his car which was parked at the curb.