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Eckman v. Stutsman County7/29/1999
ion" of the premises whe the accident occurred. As noted by Defendant's attorney, the Court would most likely grant a request to view the premises. The jury can be instructed prior to trial to view the premises in the context of the instructions given to them by the Court."
As suggested, the trial court admonished the jury immediately after having sworn them in:
"As Mr. Johnson and Mr. Hovland will show you, this incident took place outside this building. You will be passing that spot as you enter and leave and I'm going to admonish you simply to go by there, go on your way, not do any kind of independent investigation of any kind as to the area where this took place and just rely on the information as much as possible as you received here in the courtroom."
[ ] Although not specifically argued in her brief, Eckman suggests in addition to the trial court's admonishment the jury should have been instructed using pattern jury instruction NDJI - Civil 1635 which provides in pertinent part:
"You have been permitted to view the [premises] [property] involved in this case solely to help you understand the evidence received during the trial and to assist you in weighing the evidence and determining the credibility of the witnesses. A view of the [premises] [property] does not allow you to consider matters outside the evidence received in Court."
"While you need not shut your eyes to what you see when an inspection is allowed by the Court, and while you may, [even on a matter of opinion as to value,] weigh the evidence of the witnesses in the light of your own examination of the property, your verdict must be within the limits of the evidence received. Your verdict cannot rest alone upon your mere inspection of the [premises] [property]."
A similar instruction may have been helpful in this case. There is no evidence in the record provided on appeal, however, that either party requested this instruction.
[ ] The transcript on appeal consists of a four-page partial transcript of the proceedings following voir dire. Under N.D.R.App.P. 10(b) it is the appellant's duty to order a transcript of the proceedings. "We have previously warned: `The appellant assumes the consequences and the risk for the failure to file a complete transcript.'" See, e.g., Sabot v. Fargo Women's Health Organization, Inc., 500 N.W.2d 889, 892 (N.D. 1993) (citation omitted); Leingang v. George, 1999 ND 32, 18, 589 N.W.2d 585.
Absent a complete transcript of the proceedings, we will not speculate whether the parties argued the applicability of NDJI - Civil 1635 to the trial court, and we will not speculate about what was discussed on voir dire.
[ ] The record that we do have demonstrates the jury was admonished to view the sidewalk outside the courthouse only in the context of the trial court's instructions. There is no evidence to suggest the jury disregarded that admonishment. Further, although Eckman claims she was prejudiced because the County "hosted" the trial, she fails to cite to any evidence in the record to demonstrate she was denied a fair and impartial trial because of this venue. We decline to conclude it is per se prejudicial to hold a trial in the courthouse where the accident occurred. After reviewing the record provided on appeal, we conclude the trial court did not abuse its discretion in denying Eckman's motion for a change of venue.
IV.
[ ] The judgment of the trial court is affirmed.
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