Boser v. Hanson

2003 ND 95, 663 N.W.2d 182, 2003 N.D. LEXIS 117, 2003 WL 21384861
CourtNorth Dakota Supreme Court
DecidedJune 17, 2003
Docket20020206
StatusPublished
Cited by3 cases

This text of 2003 ND 95 (Boser v. Hanson) is published on Counsel Stack Legal Research, covering North Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Boser v. Hanson, 2003 ND 95, 663 N.W.2d 182, 2003 N.D. LEXIS 117, 2003 WL 21384861 (N.D. 2003).

Opinion

MARING, Justice.

[¶ 1] Travis Boser appealed a judgment dismissing his action against Robert Port for damages for injuries sustained in a snowmobile accident. We affirm.

[¶ 2] Boser and Port were snowmobiling south of Minot on February 28, 1998. When Boser’s snowmobile became inoperable, they towed it to a friend’s home. Boser then rode as a passenger on Port’s snowmobile into Minot. Boser was injured in an intersection accident when he was struck by a vehicle operated by Jay Hanson, whose direction of travel was governed by a yield sign. Boser sued Hanson 1 and Port. In its special verdict, the *183 jury found Port was not at fault. A judgment of dismissal was entered, and Boser appealed.

[¶ 8] Boser contends the trial court erred in failing to give the following jury instruction he requested:

No person may operate a snowmobile upon the roadway, shoulder, or inside bank or slope of any road, street, or highway in this state except as provided pursuant to this Chapter. A snowmobile may make a direct crossing of a street or highway provided:
(a) The crossing is made at an angle of approximately ninety degrees to the direction of the highway and at a place where no obstruction prevents a quick and safe crossing;
(b) The snowmobile is brought to a complete stop before crossing the shoulder or main traveled way of the highway;
(c) The driver yields the right of way to all oncoming traffic which con- ■ stitutes an immediate hazard.

N.D.C.C. § 39-24-09(2)

It is unlawful for any person to drive or operate any snowmobile in the following ways which are declared to be unsafe and a public nuisance:

(a) At a rate of speed greater than reasonable or proper under all the surrounding circumstances;
(b) In a careless, reckless, or negligent manner so as to endanger the person or property o[f] another or to cause injury or damage to such person or property.

N.D.C.C. § 39-24-09(5)

The trial court explained its refusal to give Boser’s requested instruction:

All right. The court will, I am going to delete this one for a couple of reasons. One, I think there is some merit while it is the law of the state it is directed to situations where the facts are different than we have here. This occurred within a city. One driver had a yield sign. Some said he stopped. Some said he didn’t. He said he stopped. That’s room for argument for the two of you. But I think when we already have the duty of the driver having the right of way and the operator of the motor vehicle in the instructions this one is in a sense cumulative and probably confusing to the jury so it will be deleted.

[¶ 4] Boser has presented no argument about the latter part of the requested instruction, which was based upon N.D.C.C. § 39-24-09(5). “Issues not briefed by an appellant are deemed abandoned.” Anderson v. Heinze, 2002 ND 60, ¶ 12, 643 N.W.2d 24 (quoting Murchison v. State, 1998 ND 96, ¶ 13, 578 N.W.2d 514). Furthermore, the matters contained in that part of the requested instruction, prohibiting operation of a snowmobile at a “speed greater than reasonable or proper under all the surrounding circumstances” and prohibiting operation of a snowmobile in a “manner so as to endanger the person or property o[f] another,” were addressed in other instructions submitted to the jury.

[¶ 5] “Jury instructions must fairly and adequately inform the jury of the applicable law.” Olander Contracting Co. v. Gail Wachter Investments, 2002 ND 65, ¶ 30, 643 N.W.2d 29 (quoting Praus v. Mack, 2001 ND 80, ¶38, 626 N.W.2d 239). “A party is entitled to instructions which present that party’s theory of the case if justified by applicable law, the evidence and the pleadings.” Beilke v. Coryell, 524 *184 N.W.2d 607, 611 (N.D.1994) (quoting Spieker v. Westgo, Inc., 479 N.W.2d 887, 844 (N.D.1992)). “A trial court is not required to instruct the jury in the exact language sought by a party if the court’s instructions adequately and correctly inform the jury of the applicable law.” Western Nat’l Mut. Ins. Co. v. University of N.D., 2002 ND 63, ¶ 42, 643 N.W.2d 4. A trial court may properly refuse to give the jury an inapplicable or irrelevant instruction. City of Mandan v. Willman, 439 N.W.2d 92, 94 (N.D.1989).

[¶ 6] Section 39-24-09, N.D.C.C., provides in part:

1. No person may operate a snowmobile upon the roadway, shoulder, or inside bank or slope of any road, street, or highway in this state except as provided pursuant to this chapter. No snowmobile may be operated at any time within the right of way of any interstate highway within this state except for emergency purposes.
2. A snowmobile may make a direct crossing of a street or highway provided:
a. The crossing is made at an angle of approximately ninety degrees to the direction of the highway and at a place where no obstruction prevents a quick and safe crossing;
b. The snowmobile is brought to a complete stop before crossing the shoulder or main traveled way of the highway;
c. The driver yields the right of way to all oncoming traffic which constitutes an immediate hazard; and
d. In crossing a divided highway, the crossing is made only at an intersection of such highway with another public street or highway.

Section 39-24-08(4), N.D.C.C., provides “governing bodies of cities may, by ordinance, regulate, restrict, and prohibit the use of snowmobiles when operated within the exclusive jurisdiction of cities.” Minot has adopted an ordinance regulating the use of snowmobiles. The trial court instructed the jury in accordance with the ordinance:

Any off-road vehicle is restricted from operating upon any street or segment of the street except for the purpose of leaving the city by the most direct route, departing from the residence of the off-road vehicle operator, or from the place where the off-road vehicle is ordinarily kept while not in use, or the purpose of returning by the same route from outside the city to the point of departure.

[¶ 7] We recently summarized some of our rules of statutory construction:

The interpretation of a statute is a question of law and is fully reviewable on appeal. Our primary objective in construing a statute is to ascertain legislative intent by looking at the language of the statute itself. We harmonize statutes to give meaning to related provisions, and we construe statutory language according to its plain, ordinary, and commonly understood meaning.

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2003 ND 183 (North Dakota Supreme Court, 2003)
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Cite This Page — Counsel Stack

Bluebook (online)
2003 ND 95, 663 N.W.2d 182, 2003 N.D. LEXIS 117, 2003 WL 21384861, Counsel Stack Legal Research, https://law.counselstack.com/opinion/boser-v-hanson-nd-2003.