Stokes v. Dailey

20 Citing cases

  1. Benzmiller v. Swanson

    117 N.W.2d 281 (N.D. 1962)   Cited 22 times

    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.

  2. Roberson v. Christoferson

    65 F.R.D. 615 (D.N.D. 1975)   Cited 7 times

             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).

  3. State v. Drader

    374 N.W.2d 601 (N.D. 1985)   Cited 5 times

    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.

  4. Winkjer v. Herr

    277 N.W.2d 579 (N.D. 1979)   Cited 47 times
    In Winkjer, at 588-89, we concluded the plaintiff had failed to produce expert testimony to refute the defendant's showing there was no genuine issue of fact regarding disclosure of a known risk. Although we recognized a growing number of jurisdictions had adopted the persuasive reasoning of the objective standard, we did not specifically decide whether the standard for disclosure is measured by "the custom of the physician practicing in the community," or by what is "reasonable under the circumstances."

    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.

  5. Wasem v. Laskowski

    274 N.W.2d 219 (N.D. 1979)   Cited 29 times

    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.

  6. Trautman v. New Rockford-Fessenden Co-op. Tr. Ass'n

    181 N.W.2d 754 (N.D. 1970)   Cited 16 times
    In Trautman v. New Rockford-Fessenden Co-Op Tr. Ass'n, 181 N.W.2d 754 (N.D. 1970), decided on the same day as Tennyson v. Bandle, supra, this Court held that it was not error for the trial court to refuse to give a "sudden emergency" instruction where the issue was not the driver's conduct after discovering that a collision was imminent, but, rather, the issue was the character of his conduct before evasive action was necessary.

    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.

  7. Leake v. Hagert

    175 N.W.2d 675 (N.D. 1970)   Cited 21 times
    Stating " fact can be proved by either direct evidence or circumstantial evidence, or by both"

    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.

  8. Linington v. McLean County

    161 N.W.2d 487 (N.D. 1968)   Cited 18 times

    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.

  9. Muhlhauser v. Archie Campbell Construction Co.

    160 N.W.2d 524 (N.D. 1968)   Cited 11 times

    [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.

  10. Bartholomay v. St. Thomas Lumber Company

    148 N.W.2d 278 (N.D. 1967)   Cited 25 times

    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: