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Leake v. Hagert - 175 N.W.2d 675 (N.D. 1970)


Generally, where a litigant wishes to take advantage of irregularities occurring during the course of a trial, either on the part of the court, the jury, the adverse parties, or anyone acting for or on their behalf, he must do so at the time the irregularities occur, in order that the court may take appropriate action. When no objection is made at the time that a comment is made by the judge and no request is made for a curative instruction concerning the comment, an appellant waives any right to appeal.


Plaintiff Leake's complaint was predicated upon the alleged negligence of the defendant, Charlotte Hagert, in her operation of a motor vehicle on October 25, 1966, wherein she negligently and carelessly drove her automobile into the rear of the plow being towed by a tractor which Leake was operating, causing injuries to Leake and damages to his plow and tractor. Leake sued Hagert, claiming that her negligence was the cause of his personal injuries and the damages to his plow and tractor. Hagert counterclaimed, saying that the cause of the crash was Leake’s negligence. During the trial, the trial court admitted testimony from the adjuster who conducted an investigation of the accident, Edward Gross. Gross testified that according to Leake’s son, a rear red light on the tractor had been broken for some time. At least three other witnesses confirmed the said condition of the rear red light. The jury returned a verdict dismissing both Leake’s and Hagert’s claims. Leake filed a motion for a new trial, which the trial court denied. Leake appealed.


Did the lower court err in denying Leake’s motion for a new trial?




The Court affirmed the denial of Leake's motion for a new trial. Finding no abuse of discretion, the Court held that the evidence supported the verdict was sufficient and the jury instructions were not prejudicial.

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