A motion for a new trial, on the ground that the evidence does not justify the verdict, is addressed to the sound, judicial discretion of the trial court, and the order granting such motion will not be reversed on appeal unless the record discloses a clear abuse of such discretion. Haslam v. Babcock, 72 N.D. 581, 10 N.W.2d 239; Stokes v. Dailey (N.D.), 97 N.W.2d 676. The trial court felt that there was little or no evidence proving that the plaintiff's injury was a direct and proximate result of the negligent acts or negligent omissions on the part of the defendant.
This was a correct statement of the degree of skill and care required of physicians in North Dakota.' Stokes v. Dailey, 97 N.W.2d 676, 685 (N.D.1959) (citation omitted). In accordBenzmiller v. Swanson, 117 N.W.2d 281 (N.D.1962); Stokes v. Dailey, 85 N.W.2d 745 (N.D.1957).
It is unnecessary for this court to determine whether the potential witness's allegations are true because this issue was not raised below. See, e.g., Stokes v. Dailey, 97 N.W.2d 676 (N.D. 1959). Even if we were to take the allegations as being true, there could be no change in the outcome in that the potential witness did not testify and her failure to testify did not result from the alleged discussion between the witness and the prosecutor.
A physician is required to exercise such reasonable care and skill as are exercised ordinarily by physicians practicing in similar localities in the same general line of practice. Benzmiller v. Swanson, 117 N.W.2d 281 (N.D. 1962); Stokes v. Dailey, 97 N.W.2d 676 (N.D. 1959); McDonnell v. Monteith, 59 N.D. 750, 231 N.W. 854 (1930); Whitson v. Hillis, 55 N.D. 797, 215 N.W. 480 (1927). We recognize the locality requirement has in recent years been criticized or rejected in a number of jurisdictions.
Even when an instruction is insufficient or erroneous standing alone, we would consider the apparent error cured if the instructions as a whole fairly advise the jury as to the law which pertains to the essential issues. See Leake v. Hagert, 175 N.W.2d 675 (N.D. 1970); Thornburg v. Perleberg, 158 N.W.2d 188 (N.D. 1968); Jasper v. Freitag, 145 N.W.2d 879 (N.D. 1966); Stokes v. Dailey, 97 N.W.2d 676 (N.D. 1959); Lund v. Knoff, 85 N.W.2d 676 (N.D. 1957); Donahue v. Noltimier, 61 N.D. 735, 240 N.W.2d 862 (1932); and Axford v. Gaines, 50 N.D. 341, 195 N.W. 555 (1923). That is not to say that an erroneous instruction cannot be so prejudicial as to require a new trial even though it may be offset by a correct instruction.
We have said many times that it is a well-established rule that a motion for a new trial, on the ground of the insufficiency of the evidence to justify the verdict, involves the legal discretion of the trial court, to be exercised in the interests of justice, and that the trial court's decision will not be disturbed on appeal unless an abuse of discretion is clearly established. Linington v. McLean County, 161 N.W.2d 487 (N.D. 1968); Grenz v. Werre, 129 N.W.2d 681 (N.D. 1964); Stokes v. Dailey, 97 N.W.2d 676 (N.D. 1959). We have examined the evidence and, on the facts disclosed by the record, find that the trial court did not abuse its discretion in denying the motion for a new trial as there is substantial evidence to sustain the verdict.
Any action which the trial court takes on such motion will not be disturbed by this court on appeal in the absence of a showing of abuse of such discreation. Muhlhauser v. Archie Campbell Construction Co., 160 N.W.2d 524 (N.D. 1968); Sucher v. Oliver-Mercer Electric, 151 N.W.2d 321 (N.D. 1967); Grenz v. Werre, 129 N.W.2d 681 (N.D. 1964); Stokes v. Dailey, 97 N.W.2d 676 (N.D. 1959); Hamre v. Senger, 79 N.W.2d 41 (N.D. 1956). The discretion of the trial court in passing on such motion is a legal discretion to be exercised in the interests of justice.
As this court has said many times, it is well established that a motion for a new trial on the ground of the insufficiency of the evidence to justify the verdict involves the legal discretion of the trial court to be exercised in the interest of justice. Grenz v. Werre, 129 N.W.2d 681 (N.D. 1964); Stokes v. Dailey, 97 N.W.2d 676 (N.D. 1959). The instant case has been fully litigated at two distinct trials and in two different counties in this State. The first trial resulted in a verdict for the County with a subsequent order granting a new trial.
[A] motion for new trial based on insufficiency of the evidence is addressed to the sound, judicial discretion of the trial court, and the action of the trial court in passing on such motion will not be disturbed unless an abuse of discretion is clearly established. Stokes v. Dailey (N.D.), 97 N.W.2d 676; Grenz v. Werre (N.D.), 129 N.W.2d 681; Kuntz v. McQuade (N.D.), 95 N.W.2d 430. An order granting a new trial on the ground of insufficiency of the evidence will not be reversed as readily as an order denying a new trial, since such order granting a new trial does not make final determination of the case.
We have often held that, while a trial court has the duty to fully and fairly instruct the jury on the law governing the issues involved in a case, it need not give the requested instruction when the matter covered by such request is fully and fairly covered by the charge given, even though the requested instruction correctly states the law. Stokes v. Dailey (N.D.), 97 N.W.2d 676; Sheets v. Pendergrast (N.D.), 106 N.W.2d 1; Gravseth v. Farmers Union Oil Company of Minot (N.D.), 108 N.W.2d 785; King v. Railway Express Agency, Inc., (N.D.), 107 N.W.2d 509; Stetson v. Investors Oil, Inc. (N.D.), 140 N.W.2d 349; Haugen v. Mid-State Aviation, Inc. (N.D.), 144 N.W.2d 692. Two of such requested instructions which were not given by the court were defendants' requested instructions Nos. 22 and 24. The defendants had requested that these instructions be given in the following language: