South v. National Railroad Passenger Corp.
Facts
Billy South was injured when his pickup collided with the railroad's westbound train at the Barrett Avenue crossing in Larimore, North Dakota, early in the morning while he was driving to a new work site for the first time. The parties agreed that a southbound driver's view of the tracks to the east was obstructed, but disputed the extent of the obstruction and whether South could have seen the train in time to stop. South presented evidence that the train whistle was not blown, that the crossbuck sign was negligently maintained, and that under the conditions South could not have seen the train in time to avoid the collision. The railroad denied negligence and argued that South was negligent in failing to detect the train and stop before entering the crossing.
Issue
Whether the district court committed reversible error in its instructions and evidentiary rulings, whether the railroad engineer had any duty to aid South after the collision, whether damages for future nursing care were properly submitted, and whether South was negligent as a matter of law so that the railroad was entitled to directed verdict or judgment notwithstanding the verdict.
Rule
Failure to instruct on a nonparty's negligence is harmless where the jury finds the plaintiff free from negligence, finds the defendant negligent and a proximate cause of the injury, and joint and several liability makes the defendant liable for the whole award. Evidence of prior accidents or near accidents is admissible if the circumstances are substantially similar; habit evidence is admissible under Rule 406 when the conduct is sufficiently frequent to show regular practice; and negative testimony is admissible when the witness probably would have perceived the event had it occurred. Expert testimony is admissible under Rule 702 when specialized knowledge will assist the trier of fact, and a party is not bound by his own testimony when it is merely an estimate or opinion. An injured plaintiff may recover the reasonable value of gratuitously provided medical or nursing care, including future nursing care, if substantial evidence establishes with reasonable medical certainty that such future services are necessary. A person who knows or has reason to know that by his conduct, whether tortious or innocent, he has caused bodily harm rendering another helpless and in danger of further harm has an affirmative duty to exercise reasonable care to prevent further harm.
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