## Facts

- After sunset on October 25, 1966, Allen Leake drove a tractor towing a plow on a North Dakota public highway.
- Charlotte Hagert drove her 1966 Plymouth into the rear of Leake’s plow.
- Leake sued Hagert, alleging her negligence was the sole proximate cause of his personal injuries and damage to his tractor and plow.
- Hagert denied negligence and counterclaimed, alleging Leake’s negligence was the sole proximate cause of her injuries and vehicle damage.
- A central factual dispute was whether Leake’s tractor had the required rear red light and whether that light was in proper condition and visible after dark.
- Edward Gross, an insurance adjuster who investigated the crash, testified about his inspection of the tractor’s rear light assembly and what he observed about its condition.
- Over objection, Gross also testified that Leake’s son told him the rear red light (or lens) had been broken for some time before the collision; the son did not testify at trial.
- At least three other witnesses testified about the condition and operation of the tractor’s rear red light, providing similar information bearing on whether it was working properly.
- The jury returned a verdict dismissing both Leake’s complaint and Hagert’s counterclaim.
- Leake moved for a new trial, arguing evidentiary error (hearsay), improper admission of investigative field notes, instructional error, and that the verdict lacked evidentiary support; the trial court denied the motion.
- Leake appealed from the judgment dismissing his claim and from the order denying a new trial.

## Issues

1. Whether the trial court committed reversible error by admitting hearsay testimony recounting Leake’s son’s out-of-court statement about the tractor’s rear red light being broken for some time.
2. Whether admitting the adjuster’s field notes, which contained hearsay and self-serving material, required a new trial.
3. Whether asserted defects in the jury instructions (including an unintended reference to “willful misconduct,” a quotation from a statute not fitting the proof, and the phrasing of an instruction on traffic-law violations as evidence of negligence) required reversal when the instructions were read as a whole.
4. Whether the evidence was sufficient to support a verdict dismissing both parties’ claims and to justify denial of Leake’s motion for a new trial.
5. Whether alleged trial irregularities (including denial of a jury request to have testimony read back) warranted relief when no timely objection was made.

## Decision

- The Supreme Court of North Dakota affirmed the judgment dismissing Leake’s complaint and affirmed the order denying a new trial.
- The court held Gross’s testimony relaying the son’s statement was inadmissible hearsay when offered for its truth, but the error was not prejudicial because similar evidence about the light’s condition came in through other witnesses.
- The court held admission of the adjuster’s field notes did not amount to prejudicial error on this record, given the manner of examination about the notes and the presence of other evidence supporting the same points reflected in the notes.
- The court held that any imperfections in particular instructions did not require reversal because the instructions, considered together, correctly stated the governing law and were not reasonably likely to mislead the jury.
- The court concluded there was evidence from which the jury could find negligence by each party (or a failure of proof) and therefore could dismiss both claims; the trial court did not abuse its discretion in denying a new trial.
- The court declined to grant relief for claimed irregularities that were not preserved by contemporaneous objection, including the handling of the jury’s request to review testimony.

## Legal Principles

- The hearsay rule bars using an out-of-court assertion as proof of the fact asserted unless the declarant is produced at trial for testimony and cross-examination.
- Admission of hearsay is error, but it is not reversible error where similar evidence is received through other witnesses such that the challenged proof is largely cumulative and substantial rights are not affected. (Rule 61, N.D.R.Civ.P.)
- The admission of investigative notes containing hearsay and self-serving declarations does not require reversal absent a showing of prejudice, especially where the opposing party tests the contents through cross-examination and comparable evidence is presented at trial.
- Jury instructions are evaluated as a whole; an isolated inaccuracy or extraneous term does not mandate reversal if the full charge correctly states the law and is not likely to mislead the jury.
- An instruction that violation of traffic laws may be considered as evidence of negligence is not reversible error where the jury is otherwise properly instructed on negligence, contributory negligence, and proximate cause.
- A trial court’s denial of a new trial is reviewed for abuse of discretion; where evidence permits different reasonable conclusions about fault and causation, an appellate court will not substitute its judgment for that of the jury and trial judge.
- Claims of trial irregularity generally must be preserved by timely objection; failure to object may forfeit the issue on appeal.

## Conclusion

In this after-dark rear-end collision between a car and a tractor towing a plow, the North Dakota Supreme Court affirmed dismissal of both parties’ claims, holding that although hearsay about the tractor’s rear light was admitted and some instruction language was imperfect, any errors were harmless because similar evidence was otherwise presented and the jury was adequately instructed on negligence and causation, and the verdict was supported by evidence that allowed differing conclusions.


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