in case in which negligence of company supervising construction of plant was followed by alleged negligence of company operating plant before completion of construction the court found the lower court’s factual findings on foreseeability and causation were not clearly erroneous
How later courts described this case
- in case in which negligence of company supervising construction of plant was followed by alleged negligence of company operating plant before completion of construction the court found the lower court’s factual findings on foreseeability and causation were not clearly erroneous
- issues of negligence are questions of fact for the trier of fact
- no contractual indemnity agreement
Written by the judges who cited it.
The opinion
PEDERSON, Justice,
concurring specialty-
I agree with the opinion authored by Chief Justice Erickstad. He has done a commendable job in analyzing the facts and the law and in justifying the results. Likewise, the trial court performed admirably in the trial of the ease and understanding the complexity of the applicable law, as reflected in the findings of fact and conclusions of law.
The trial court prepared 44 numbered findings of fact, several with subdivisions with up to 12 separately numbered paragraphs. As far as I can determine, no one urged that he adopt more, or less, or different findings of fact. Yet it is apparent that a critical finding “that the negligence of Minn-Dak should have been forseen by BMA” was overlooked. (See slip opinion by Chief Justice Erickstad, pages 18-19.)
Judicial economy prevents me from urging that the case be remanded to permit the trial court to make the necessary finding. At the same time, I am compelled to' point out that when appellate judges make findings of fact they encroach on the trial court function. Since Nichols & Shepard Co. v. Stangler, 7 N.D. 102 , 72 N.W. 1089, 1090 (1897) this court has been reiterating *351 that our system has “discarded all implied findings,” even before trial de novo on appeal was abolished.