author: WRIGHT, Judge.

text:
    Chad HAASE, petitioner, Appellant, v. COMMISSIONER OF PUBLIC SAFETY, Respondent.
    No. A03-1595.
    Court of Appeals of Minnesota.
    May 25, 2004.

      Rodd A. Tschida, St. Paul, MN, for appellant.
    Mike Hatch, Attorney General, Sheila M. Fitzgerald Steichen, Assistant Attorney General, St. Paul, MN, for respondent.
    Considered and decided by WRIGHT, Presiding Judge; SCHUMACHER, Judge; and WILLIS, Judge.
   OPINION

WRIGHT, Judge.

In this appeal from the district court’s decision sustaining the revocation of his driver’s license under the implied-consent law, appellant argues that the revocation is based on evidence obtained from a police officer’s warrantless entry into the garage of appellant’s home, in violation of the Fourth Amendment to the United States Constitution and Article 1, Section 10, of the Minnesota Constitution. We reverse.

FACTS

The Farmington police department received a call from an identified citizen who reported that a vehicle traveling on Pilot Knob Road had crossed the center line several times. The caller gave a description and the license-plate number of the vehicle. Officer Gary Rutherford responded to the call but initially was unable to locate the vehicle. He ran a license-plate check and learned that the vehicle was registered to appellant Chad Haase. The officer proceeded to Haase’s residence, where he saw the reported vehicle pulling into the garage.

Without activating any emergency lights, the officer parked his car and walked to the open garage. The officer stood at the threshold of the open garage, behind the vehicle, and waited for the driver to emerge from the car. While the officer was waiting, Haase caused the garage door to begin to close. The officer interrupted the closing door by kicking his leg out to trip the auto-reverse sensor. The garage door retreated. When Haase emerged from the vehicle, he was startled by the officer’s presence. After explaining to Haase why he was there, the officer asked to speak with Haase about the reported incident. While the officer interviewed Haase inside the garage, Haase exhibited signs of intoxication. Haase agreed to submit to a preliminary breath test, which registered above the legal limit. The officer then arrested Haase for driving while impaired by alcohol. Haase took the implied-consent test, which revealed an alcohol concentration of .10 or more, and the Commissioner of Public Safety revoked Haase’s driver’s license pursuant to the implied-consent law. See Minn.Stat. § 169A.52, subd. 4 (2002). The district court sustained the license revocation, and Haase moved for reconsideration. On reconsideration, the district court upheld the license revocation. This appeal followed.

ISSUE

Did appellant have a reasonable expectation of privacy in his garage?

ANALYSIS

Haase argues that the revocation of his driver’s license under the implied-consent law should be rescinded. He contends that any evidence of his intoxication should be suppressed because the officer’s warrantless entry into Haase’s garage constituted an unreasonable search in violation of the United States and Minnesota constitutions. When the facts are not in dispute, the validity of a search is a question of law subject to de novo review. State v. Bauman, 586 N.W.2d 416, 419 (Minn.App.1998), review denied (Minn. Nov. 24, 1998). When reviewing the constitutionality of a search, we independently analyze the undisputed facts to determine whether evidence resulting from the search should be suppressed. State v. Othoudt, 482 N.W.2d 218, 221 (Minn.1992). The district court’s conclusions of law will not be overturned absent erroneous construction and application of the law to the facts. Dehn v. Comm’r of Pub. Safety, 394 N.W.2d 272, 273 (Minn.App.1986).

Under the implied-consent law, an officer may require a person to take a test if the officer has probable cause to believe that the person was driving while impaired and that any one of four conditions exist. Minn.Stat. § 169.51, subd. 1(b) (2002). Haase argues that the evidence providing probable cause to believe that he was driving while impaired should be suppressed because it was obtained in an unconstitutional manner and that his license revocation should be rescinded accordingly.

The Fourth Amendment to the United States Constitution and Article I, Section 10, of the Minnesota Constitution prevent police from entering constitutionally protected areas without a warrant, subject to limited exceptions. In re Welfare of B.RK., 658 N.W.2d 565, 578 (Minn.2003). This constitutional protection extends to all places where an individual has a reasonable expectation of privacy, including the home and its curtilage. State v. Carter, 569 N.W.2d 169, 176-77 (Minn.1997), rev’d on other grounds sub nom. Minnesota v. Carter, 525 U.S. 83, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998).

It has been long recognized that a garage adjoining the home enjoys the same constitutional protections against warrantless entry as the home. See Taylor v. United States, 286 U.S. 1, 5, 52 S.Ct. 466, 467, 76 L.Ed. 951 (1932); State v. Crea, 305 Minn. 342, 345, 233 N.W.2d 736, 739 (1975). This principle is so well grounded that many courts do not undertake any expectation-of-privacy analysis. See, e.g., United States v. Ojeda, 276 F.3d 486, 489 (9th Cir.2002); People v. Robles, 23 Cal.4th 789, 97 Cal.Rptr.2d 914, 3 P.3d 311, 314 (2000). The majority rule, almost without exception, provides that the Fourth Amendment applies equally to the garage and the home. See, e.g., State v. Legg, 633 N.W.2d 763, 768 (Iowa 2001); State v. Winkler, 552 N.W.2d 347, 352 (N.D.1996). Furthermore, the Minnesota Supreme Court has explicitly recognized that the garage is part of the curtilage and is entitled to the same expectation of privacy as the home. Crea, 305 Minn. at 345, 233 N.W.2d at 739.

The commissioner relies on Tracht v. Comm’r of Pub. Safety to justify the officer’s entry into the garage. 592 N.W.2d 863 (Minn.App.1999), review denied (Minn. July 28, 1999). In Tracht, we acknowledged that constitutional protections do not extend to areas around the home that are “impliedly open.” Id. at 865. Such areas are not cloaked with a reasonable expectation of privacy because they are areas where a visitor may be expected to go. Carter, 569 N.W.2d at 176. Impliedly open areas include ordinary routes of access to the entrance of a residence, such as driveways or sidewalks. Crea, 305 Minn. at 346, 233 N.W.2d at 739.

In Tracht, a resident had left the overhead door of his attached garage open. Tracht, 592 N.W.2d at 864. Police entered the garage to access the service door to the resident’s home. Id. We held under the undisputed facts that the garage was impliedly open to the police solely “for the purpose of knocking on the service door,” not for “looking for evidence in the garage.” Id. at 865.

There are at least three reasons for distinguishing the instant case from Tracht. First, Haase had not left his overhead door open. Rather, at the time of the police encounter, Haase was closing the garage door after his entry. We find no basis to conclude that a person forfeits a reasonable expectation of privacy merely because that person briefly opens a door to enter the home. Cf. People v. Stockman, 159 Misc.2d 730, 606 N.Y.S.2d 864, 866 (N.Y.J.Ct.1993) (“[N]o one can argue that if a householder opens the outer door ... that such opening is an abandonment of the right to be free from physical invasion into the dwelling.”).

Second, the officer accomplished the entry by interrupting the closing of Haase’s garage door. To conclude that the garage was impliedly open, we must be persuaded that the officer was in a place that an ordinary visitor would be expected to go. See Crea, 305 Minn. at 345, 233 N.W.2d at 739. The facts do not support this conclusion. The officer intruded into an unusually dangerous place, the threshold of the overhead door as the door was closing. The act of closing the door forecloses any reasonable conclusion that the garage was impliedly open. Entry through a closing garage door is not expected of an ordinary visitor. Cf. State v. Barry, 94 N.M. 788, 617 P.2d 873, 875 (1980) (finding, in dictum, that officer’s action to open garage door ordinarily would be an unconstitutional intrusion). Indeed, such entry is discouraged. Id. Accordingly, we conclude that Haase continued to have a reasonable expectation of privacy in his garage because it was not impliedly open to the public.

Third, the officer did not enter the garage to access a door to the home, but to investigate whether Haase was driving while impaired. By looking for evidence, the officer engaged in the exact conduct that Tracht cautioned against. See Tracht, 592 N.W.2d at 865. Moreover, Haase’s driving offense, though serious, does not supply exigent circumstances that justify a warrantless entry into a constitutionally protected area. See Welsh v. Wisconsin, 466 U.S. 740, 753, 104 S.Ct. 2091, 2099, 80 L.Ed.2d 732 (1984).

If police enter a constitutionally protected area without a warrant, that entry is presumed to be unreasonable, and evidence obtained as a result must be suppressed. Othoudt, 482 N.W.2d at 222. For that evidence to be otherwise admissible, the state has the burden to establish that the entry was justified by an applicable exception to the warrant requirement. State v. Ture, 632 N.W.2d 621, 627 (Minn.2001). The commissioner concedes, and we agree, that no exception to the warrant requirement applies here. We, therefore, conclude that the officer’s entry into the garage is unreasonable. Thus, the fruits of the officer’s warrantless entry, including the ensuing interview and the evidence of intoxication, must be suppressed.

The commissioner argues for the first time on appeal that, even if the officer entered Haase’s garage in violation of the warrant requirement, the inevitable-discovery exception to the exclusionary rule applies. See State v. Harris, 590 N.W.2d 90, 105 (Minn.1999); see also Nix v. Williams, 467 U.S. 431, 444, 104 S.Ct. 2501, 2509, 81 L.Ed.2d 377 (1984) (holding that an exception to the Fourth Amendment exclusionary rule applies where the police would have obtained the evidence if no illegality had occurred). Generally, we will not consider matters that were not raised before the district court. Fisher v. Comm’r of Pub. Safety, 389 N.W.2d 771, 773 (Minn.App.1986); Connolly v. Comm’r of Pub. Safety, 373 N.W.2d 352, 354 (Minn.App.1985). Here, in the absence of a fully developed record enabling our consideration of this issue, we decline to address it for the first time on appeal.

DECISION

Because Haase did not abandon his reasonable expectation of privacy in his garage by opening the garage door to gain entry, the district court erred in declining to suppress the evidence seized pursuant to the officer’s warrantless entry. The district court’s order sustaining the revocation of Haase’s driver’s license is reversed.

Reversed.

      . Additional cases reaching the same result include State v. Cochrane, 84 S.D. 527, 173 N.W.2d 495, 497 (1970); State v. Kennedy, 20 Conn.App. 354, 567 A.2d 841, 844 (1989); People v. Alexander, 272 Ill.App.3d 698, 209 Ill.Dec. 65, 650 N.E.2d 1038, 1043 (1995); People v. Dugan, 102 Mich.App. 497, 302 N.W.2d 209, 212 (1980); Brown v. City of Oklahoma City, 721 P.2d 1346, 1349 (Okla.Ct.App.1986), aff’d in part, rev'd in part on other grounds, 721 P.2d 1356 (Okla.1986); and Commonwealth v. Ealy, 12 Va.App. 744, 407 S.E.2d 681, 685 (1991). Our research found only one case that recognized an expectation of privacy in a garage, but still allowed war-rantless entry without an applicable warrant exception. See Bies v. State., 76 Wis.2d 457, 251 N.W.2d 461, 467-68 (1977) (allowing entry where officer saw contraband in plain view from a nonpublic vantage point).

      . A few jurisdictions recognize that entry into a garage may be permissible where police have probable cause to believe a crime is in progress. See People v. Houze, 425 Mich. 82, 387 N.W.2d 807, 811-12 (1986); People v. Farenga, 81 Misc.2d 287, 364 N.Y.S.2d 982, 987 (N.Y.Sup.Ct.1975).


source: Caselaw Access Project

author: ZINTER, Justice.

license: Public Domain

text:
    2004 SD 52
    Milo Walter HIRNING, Petitioner and Appellant, v. Robert DOOLEY, Warden of the Springfield Correctional Facility Springfield, South Dakota, Respondent and Appellee.
    No. 22839.
    Supreme Court of South Dakota.
    Considered on Briefs Jan. 12, 2004.
    Decided April 21, 2004.

      David M. Hosmer, Yankton, South Dakota, for petitioner and appellant.
    Lawrence E. Long, Attorney General, Sherri Sundem Wald, Assistant Attorney General, Pierre, South Dakota, for respondent and appellee.
   ZINTER, Justice.

[¶ 1.] Milo Hirning filed a Petition for Writ of Habeas Corpus challenging four drug convictions. The habeas court denied relief. Hirning appeals on three of the convictions. We affirm.

Facts and Procedural History

[¶ 2.] There are three criminal proceedings involving four convictions that were reviewed by the habeas court. Hirn-ing challenges the first, third, and fourth convictions in this appeal.

[¶ 3.] The first conviction arose out of an automobile stop on a Brown County highway. The facts related to this conviction are found in State v. Hirning, 1999 SD 53, 592 N.W.2d 600 (Hirning I). Hirning’s trial counsel was William Gerdes. Gerdes filed a motion to suppress the drugs found in Hirning’s pants pocket after the stop. The motion was denied by the trial court. Hirning stipulated to the facts and was found guilty of unauthorized possession of a controlled substance (and of being a habitual offender). Hirning appealed the search, conviction, and ten-year sentence. We affirmed in Hirning I.

[¶ 4.] The second conviction arose from a 17-year-old informant’s allegation that Hirning sold marijuana. Hirning was charged with distribution of marijuana to a minor and with being a habitual offender. He was initially represented by Gerdes, but retained attorney Ramon Roubideaux to finish the case. Hirning pleaded guilty to distribution and was sentenced to five years in the South Dakota State Penitentiary. This sentence ran concurrently with the previous ten-year sentence. This conviction is not challenged in this habeas appeal.

[¶ 5.] The third and fourth convictions both arose from a subsequent search of Hirning’s home. Roubideaux was again Hirning’s trial counsel. Hirning’s co-defendant was Shane Nolter, who was also represented by Roubideaux. Hirning filed an affidavit waiving any conflict of interest existing at the time of the affidavit.

[¶ 6.] In these third and fourth cases, Roubideaux filed a motion to suppress. Hirning contended that the warrant failed to state with specificity the items to be seized. At the hearing on that motion, Roubideaux orally amended the motion to add a claim that the warrant failed to establish probable cause. The motion was denied by Circuit Judge Jack Von Wald.

[¶ 7.] Hirning later retained David Palmer as new counsel. Palmer filed motions to reconsider Roubideaux’s previous challenges to the search warrant. Palmer also requested that Judge Von Wald re-cuse himself because he had signed the search warrant. Judge Von Wald denied the recusal request, denied reconsideration of the Roubideaux motion to suppress, and denied the subsequent motions. Based on stipulated facts, Hirning was convicted of both counts of unauthorized possession of a controlled substance. He was sentenced to ten years on each count. These sentences ran concurrently with each other, but consecutive to his sentences for the first and second convictions.

[¶ 8.] Hirning then filed this petition for writ of habeas corpus challenging the validity of his convictions. Following an evidentiary hearing, Circuit Judge Jon Flemmer denied Hirning’s request for ha-beas relief.

[¶ 9.] On appeal, Hirning raises the following issues:

Conviction 1
1. Whether trial counsel was ineffective for failing to properly investigate witnesses who could have testified at the suppression hearing.
Convictions 3 and 4
2. Whether the judge who signed the search warrant had an appearance of bias when he presided at the suppression hearing reviewing the same warrant.
3. Whether the affidavit in support of the search warrant failed to establish probable cause.
4. Whether trial counsel was ineffective for failing to adequately raise Fourth Amendment and Due Process claims, and for having a conflict of interest.

Analysis and Decision

[¶ 10.] Habeas Corpus review is limited because it is a collateral attack on a final judgment. Siers v. Class, 1998 SD 77, ¶ 9, 581 N.W.2d 491, 494 (citing Black v. Class, 1997 SD 22, 560 N.W.2d 544). “Habeas corpus is not a substitute for direct review.” Id. (citing Loop v. Class, 1996 SD 107, ¶ 11, 554 N.W.2d 189, 191). “[HJabeas corpus can be used only to review (1) whether the court had jurisdiction of the crime and the person of the defendant; (2) whether the sentence was authorized by law; and (3) in certain cases, whether an incarcerated defendant has been deprived of basic constitutional rights.” St. Cloud v. Leapley, 521 N.W.2d 118, 121 (S.D.1994) (citations omitted). “Fact determinations will only be disturbed upon a showing that they were clearly erroneous.” New v. Weber, 1999 SD 125, ¶ 5, 600 N.W.2d 568, 572 (citing Loop v. Class, 1996 SD 107, ¶ 11, 554 N.W.2d 189, 191). “However, ineffective assistance of counsel is a mixed question of fact and law on which this Court can substitute its own judgment as to whether counsel’s representation was ineffective.” Davi v. Class, 2000 SD 30, ¶ 15, 609 N.W.2d 107, 112 (citations omitted). We review the constitutional and legal claims de novo. See State v. Dillon, 2001 SD 97, ¶ 12, 632 N.W.2d 37, 43; Ramos v. Weber, 2000 SD 111, ¶ 12, 616 N.W.2d 88, 92.

Conviction 1

[¶ 11.] 1. Whether trial counsel was ineffective for failing to properly investigate witnesses who could have testified at the suppression hearing.

[¶ 12.] Hirning claims that Gerdes was ineffective in failing to investigate whether two witnesses should have been called at the suppression hearing. Hirning also claims that Gerdes was ineffective for failing to call Hirning at the suppression hearing.

[¶ 13.] We utilize the two-prong test set forth in Strickland v. Washington to review ineffective assistance of counsel claims. 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction ... resulted from a breakdown in the adversary process that renders the result unreliable.

Id., 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693.

[¶ 14.] Furthermore, “[t]o establish prejudice from counsel’s failure to investigate a potential witness, [Hirning] must show that the witness would have testified and that their testimony ‘would have probably changed the outcome of the trial.’ ” Siers, 1998 SD 77, ¶ 25, 581 N.W.2d at 497 (citing Hadley v. Groose, 97 F.3d 1131, 1135 (8th Cir.1996) (citation omitted)). We therefore “consider: ‘(1) the credibility of all witnesses, including the likely impeachment of the uncalled defense witnesses; (2) the interplay of the uncalled witnesses with the actual defense witnesses called; and (3) the strength of the evidence actually presented by the prosecution.’ ” Id. (citing McCauley-Bey v. Delo, 97 F.3d 1104, 1106 (8th Cir.1996)). “[T]here is no prejudice if, factoring in the uncalled witnesses, the government’s case remains overwhelming.” Id. ¶ 27 (citations omitted).

[¶ 15.] Hirning first asserts that Gerdes was ineffective for failing to properly investigate whether Billy Mills and Denise Mills should have been called at the suppression hearing to challenge the admissibility of the drugs found in Hirning’s pants pocket. Hirning contends that Billy Mills, the front-seat passenger, would have negated Denise Mills’s on-the-scene admission that other drugs previously found in the vehicle were owned by all three. Negating Denise’s on-the-scene admission could have called into question the “joint possession” fact that the highway patrol officer used to establish probable cause to search Hirning. Hirning essentially argues that, by impeaching Denise Mills’s on-the-scene admission, the drugs found in his pocket would have been suppressed.

[¶ 16.] To support this argument, Hirn-ing points out that Billy Mills later pleaded guilty to possession of the “other drugs” that were found by the patrol officer in the car. Billy Mills also testified at the habeas hearing that he claimed sole ownership of those drugs. Although this evidence might now impeach Denise’s statement of joint ownership, this after-the-fact evidence would not have eliminated probable cause at the time of the stop. A number of facts support this conclusion. First, Billy Mills did not claim that Denise failed to make the joint ownership statement. He merely claimed ownership and denied hearing Denise tell the officer that the drugs belonged to everyone. Thus, the impeachment value was limited. Second, Billy admitted that, had he been called to testify at Hirning’s suppression hearing, he would have been able to offer incriminating testimony against Hirning. Nevertheless, Hirning argues that Gerdes was ineffective in failing to investigate and call

Denise and Billy Mills at the suppression hearing.

[¶ 17.] In habeas cases challenging an attorney’s investigation, “the reasonableness of counsel’s performance is to be evaluated from counsel’s perspective at the time of the alleged error and in light of all the circumstances. The petitioner must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Brakeall v. Weber, 2003 SD 90, ¶ 15, 668 N.W.2d 79, 84 (emphasis added) (quoting Bradley v. Weber, 1999 SD 68, ¶ 19, 595 N.W.2d 615, 621).

It is well settled that in reviewing trial counsel’s performance, it is not this Court’s function to second guess the decisions of experienced trial attorneys regarding matters of trial tactics unless the record shows that counsel failed to investigate and consider possible defenses and to exercise their good faith judgment thereon. The determination does not rest on whether this Court finds the tactics or strategy employed to be the most advantageous but, instead, whether counsel satisfied the Strickland standard of competence. In reviewing whether counsel acted reasonably we analyze counsel’s performance in light of the circumstances then existing. Neither the result reached nor second guessing with the benefit of hindsight determine the reasonableness of counsel’s performance.
While this court will not compare counsel’s performance to that of some idealized “super-lawyer” and will respect the integrity of counsel’s decision in choosing a particular strategy, these considerations must be balanced with the need to insure that counsel’s performance was within the realm of competence required of members of the profession. An attorney must make a reasonable investigation and must make reasonable decisions to forego particular investigations. A difference in trial tactics does not amount to ineffective assistance of counsel.

Id. ¶ 16 (emphasis added) (quoting Randall v. Weber, 2002 SD 149, ¶ 7, 655 N.W.2d 92, 96).

[¶ 18.] The reasonableness of Gerdes’s decision under the circumstances existing at the time of the suppression hearing was described by the habeas court. The court first found that Gerdes did investigate the matter by talking to Mills’ counsel. The court also found that at the time of Hirn-ing’s suppression hearing, Denise and Billy Mills were represented by counsel and were facing similar charges to those Hirn-ing was charged with. Thus, the habeas court found that it was unlikely that either witness could be called. The habeas court further found that, even if they were called, Billy’s evidence would have been impeached and it would not have affected the outcome of the suppression motion. The habeas court found:

Although Mr. Gerdes did not speak directly to Mr. and Mrs. Mills, he did contact their counsel and did learn generally what they would say if required to testify. Although Billy Mills now testifies that the controlled substance under the front passenger seat of the vehicle was his and that he told the officer it was his on the night the vehicle was stopped, there has been no previous evidence presented in court to support those statements. The officer testified at the Suppression Hearing that only Denise Mills made a statement as to the ownership of the controlled substance. It is not the testimony that Mr. Mills now presents at the Habeas Hearing that is controlling, but rather what testimony Mr. Gerdes would have been able to elicit at the time of the Suppression Hearing. Obviously, due to the pending criminal charges, Billy Mills could not have been forced to take the stand at the Suppression Hearing and to incriminate himself. Denise Mills’ assertions as to the ownership of the controlled substance were already knoum to the officer, to the State and to Mr. Gerdes and were made knoum through testimony and playing of the videotape. Although Mr. Mills testified that he did not hear Denise Mills say that the methamphetamine was owned by all of the parties, clearly that statement was supported by the testimony and tape played at the Suppression Hearing.

(Emphasis added.)

[¶ 19.] These findings are not clearly erroneous. They also support the habeas court’s conclusion that Gerdes investigated the matter, considered possible defenses, and exercised good faith judgment in not calling Billy and Denise. First, although Gerdes acknowledged that he did not personally interview Denise or Billy Mills, he testified that either the Mills’ attorney would not allow them to talk, or they would have offered unfavorable evidence against Hirning. Thus, he clearly investigated the matter and learned that their testimony could not be used. Second, it is quite apparent that, in light of the videotape, Billy’s after-the-fact claim of exclusive ownership would not have changed the outcome of the suppression hearing. As we determined in Hirning I, once Denise made her statement of joint ownership to the officer, the officer had probable cause to search all of the occupants in the vehicle. Apparently, her statement was also confirmed by the videotape. Therefore, even if Billy’s subsequent admission conflicted with Denise’s earlier on-the-scene statement, Billy’s subsequent admission would not have eliminated the probable cause presented at the scene and observed by the officer. As the habeas court pointed out, “[e]ven if [Hirning] and Billy Mills had testified at the Suppression Hearing, there [was no] reason to believe that the [suppression] court would [have found] their testimony more credible than that testimony provided by the [patrolman] and through the tape.” We agree.

[¶ 20.] We finally note that, with respect to Hirning’s possible testimony, the habeas court found that “Hirning participated in the decision not to testify at [his own] suppression hearing.” Consequently, Hirning has not overcome the presumption that Gerdes’ performance was sound trial strategy, and if not, that it was not prejudicial.

Convictions 3 and 4

[¶ 21.] 2. Whether the judge who signed the search warrant had an appearance of bias when he presided at the suppression hearing reviewing the same warrant.

[¶ 22.] Hirning challenges the third and fourth convictions on due process grounds. Hirning asserts that he was denied due process because Judge Yon Wald signed the search warrant for the search of Hirning’s home, and later, presided at the suppression hearing upholding the warrant. Hirning does not argue that Judge Von Wald was actually biased, but instead, argues that bias should be presumed in cases where there is “such a likelihood of bias or an appearance of bias that the judge was unable to hold the balance between vindicating the interests of the court and the interests of the accused.” Taylor v. Hayes, 418 U.S. 488, 501, 94 S.Ct. 2697, 2704, 41 L.Ed.2d 897, 909 (1974) (quoting Ungar v. Sarafite, 376 U.S. 575, 588, 84 S.Ct. 841, 849, 11 L.Ed.2d 921, 930 (1964)). Hirning asserts that his case presents that likelihood because “[a] judge who reviews his own decision to issue a warrant labors within a procedural system that creates an implied bias.”

[¶ 23.] Hirning relies on In re Murchison, 349 U.S. 133, 75 S.Ct. 623, 99 L.Ed. 942 (1955), for the proposition that due process can be violated even when no actual bias is proven. In Murchison, the United States Supreme Court found a due process violation when a judge sat as a “judge-grand jury” and later presided at a contempt hearing in which witnesses were found in contempt for their conduct before him. The Supreme Court noted that:

“Every procedure which would offer a possible temptation to the average man as a judge ... not to hold the balance nice, clear, and true between the State and the accused denies the latter due process of law.” ... Such a stringent rule may sometimes bar trial by judges who have no actual bias and who would do their very best to weigh the scales of justice equally between contending parties. But to perform its high function in the best way “justice must satisfy the appearance of justice.”

Id. at 136, 75 S.Ct. 623 (internal citations omitted).

[¶ 24.] Murchison, however, does not apply to the present situation. In Murchison, the judge “had conducted [] secret ‘one-man grand jury’ proceedings.” Id. (emphasis added). Therefore, the Court stated that:

As a practical matter it is difficult if not impossible for a judge to free himself from the influence of what took place in his ‘grand-jury’ secret session. His recollection of that is likely to weigh far more heavily with him than any testimony given in the open hearings.

Id. at 138, 75 S.Ct. 623.

Thus the judge whom due process requires to be impartial in weighing the evidence presented before him, called on his own personal knowledge and impression of what had occurred in the grand jury room and his judgment was based in part on this impression, the accuracy of which could not be tested by adequate cross-examination.

Id. Even more significantly, the judge in that grand jury proceeding was acting as the investigator and the charging authority. Under those circumstances, the Supreme Court noted that:

It would be very strange if our system of law permitted a judge to act as a grand jury and then try the very persons accused as a result of his investigations. Perhaps no State has ever forced a defendant to accept grand jurors as proper trial jurors to pass on charges growing out of their hearings. A single ‘judge-grand jury’ is even more a part of the accusatory process than an ordinary lay grand juror. Having been a part of that process a judge cannot be, in the very nature of things, wholly disinterested in the conviction or acquittal of those accused.

Id. at 137, 75 S.Ct. 623. Obviously, none of these Murchison concerns are present in this case.

[¶ 25.] In this case, Judge Von Wald initially reviewed an affidavit that was prepared outside his presence. No witnesses were required to testify in front of Judge Von Wald, and the affidavit only contained written information from outside sources. Therefore, Judge Von Wald was only required to determine if legally, that affidavit established probable cause for the issuance of the warrant. In performing that task “a judge does not vouch for the veracity of the affidavit given in support thereof; [the judge] simply determines that the information in the affidavit is sufficient to provide probable cause to believe that the informant was giving truthful information.” North Carolina v. Monserrate, 125 N.C.App. 22, 479 S.E.2d 494, 501 (N.C.App.1997) (citing Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)). Consequently, in the subsequent suppression hearing, Judge Von Wald was only required to reconsider his earlier legal determination, and none of the due process dangers described in Murchison were present.

[¶ 26.] Moreover, “[t]he opportunity to disqualify a judge is statutory ... and not a constitutional right, except as it may be implicit in a right to a fair trial.” State v. Hoadley, 2002 SD 109, ¶ 32, 651 N.W.2d 249, 257 (quoting State v. Goodroad, 1997 SD 46, ¶ 25, 563 N.W.2d 126, 132). The South Dakota Code of Judicial Conduct provides the rule for disqualification:

A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, included but not limited to instances where: (a) the judge has a personal bias or prejudice concerning a party[.]

Canon 3E(1). However, “[t]he decision to preside over a case lies within the sound discretion of the trial judge.” Hoadley, 2002 SD 109, ¶ 32, 651 N.W.2d at 257. Furthermore, a “judge is presumed to be impartial, and the party seeking disqualification bears the substantial burden of proving otherwise.” Id. (quoting United States v. Walker, 920 F.2d 513, 517 (8th Cir.1990) (citing Ouachita Nat’l Bank v. Tosco Corp., 686 F.2d 1291, 1300 (8th Cir.1982))). Because the right to disqualify is statutory, because the decision to disqualify is discretionary, and because Hirning does not assert actual bias or prejudice, his constitutional right to due process is not implicated here. Because his constitutional rights are not implicated, he is not entitled to a habeas review of this issue.

[¶ 27.] Nevertheless, because of the importance of the issue, and because this Court has not previously reached the merits of the implied bias question, we now address it. Although not directly on point, we have previously foreshadowed that:

[T]he issue has been resolved directly and explicitly that a judge is not disqualified from later participation in a case, even where the suppression of physical evidence is the key issue, by virtue of the fact that [the same judge] issued the search and seizure warrant. Waupoose v. State, 46 Wis.2d 257, 174 N.W.2d 503, 504 (1970); Arnold v. Commonwealth, 421 S.W.2d 366, 366-67 (Ky.1967); State ex rel. French v. Hendricks Superior Court, 252 Ind. 213, 247 N.E.2d 519, 525 (1969); State v. Smith, 113 N.J.Super. 120, 273 A.2d 68, 78 (1971); State v. Toce, 6 Conn.Cir.Ct. 192, 269 A.2d 421, 422-423 (1969); Irwin v. State, 441 S.W.2d 203, 208-209 (Tex.Crim.App.1968).

State v. Hoeft, 1999 SD 24, ¶ 12, 594 N.W.2d 323, 326 n. 4 (quoting Trussell v. State, 67 Md.App. 23, 506 A.2d 255, 256 (1986)) (quoting Peaper v. State, 14 Md.App. 201, 286 A.2d 176, 180-81 (1972), cert. denied, 409 U.S. 987, 93 S.Ct. 342, 34 L.Ed.2d 253)). Other jurisdictions also permit the judge who issued a challenged search warrant to rule on the motion to suppress. See 5 Wayne R. LaFave, Search and Seizure § 11.2(e) (3d ed. 1996 & Supp. 2004) (citing Holloway v. State, 293 Ark. 438, 738 S.W.2d 796, reh’g denied 293 Ark. 438, 742 S.W.2d 550 (1987)) (trial judge may rule on search warrant he issued; “We agree with the decisions of other jurisdictions holding that Canon 3C(1)(a) of the Code of Judicial Conduct is not meant to preclude participation of a judge who has obtained knowledge of a case through previous judicial participation in it”); People v. Liberatore, 79 N.Y.2d 208, 581 N.Y.S.2d 634, 590 N.E.2d 219 (1992) (“A Judge who issued a warrant is not prohibited from entertaining a motion to suppress evidence seized pursuant to that warrant nor is that Judge the only one who may entertain such a motion”); People v. McCann, 85 N.Y.2d 951, 626 N.Y.S.2d 1006, 650 N.E.2d 853 (1995) (rejecting defendant’s contention that the judge “should have recused himself from ruling on the validity of a search warrant he issued,” as that “decision is a matter of individual conscience for the court”). See also 2 John Wesley Hall, Jr., Search and Seizure § 45.45 (3d ed. 2000).

[¶ 28.] Although this general rule is well established, we also agree with the Eighth Circuit’s caveat that “[w]e have some doubts about the practice, and our affirmance in this ease is not to be interpreted as approving it.” United States v. Alton, 982 F.2d 285, 287 (8th Cir.1992). Ultimately, we believe that though “it is the better practice to allow a different judge to rule upon the validity of such a warrant ... it does not require a different judge to rale upon the validity of a search warrant.” Monserrate, 479 S.E.2d at 501 (citation omitted). Therefore, even with this caveat, we find no implied bias or due process violation here.

[¶ 29.] 3. Whether the affidavit in support of the search warrant lacked probable cause.

[¶30.] Hirning was convicted of the second and third offenses on stipulated facts. He attempted to appeal, but failed to perfect his appeal in a timely manner. Hirning now attempts to raise Fourth Amendment trial issues. He specifically claims that the trial court’s review at the suppression hearings exceeded the four corners of the affidavit; that the affidavit contained stale information; that the informants were not bolstered in the affidavit; and that material information was excluded from the affidavit. The habeas court rejected each of these arguments. The habeas court concluded that as a matter of law and “[u]nder the totality of the circumstances, probable cause existed for the issuance of the search warrant, and the Affidavit was not deficient for lack of probable cause.”

[¶ 31.] At the outset we observe that generally, “[i]ssues involving probable cause for searches and seizures may not be litigated collaterally in habeas proceedings” if they were considered by the trial court. Scott v. Class, 532 N.W.2d 399, 402 (S.D.1995). Therefore, if the probable cause issue was raised and rejected by the trial court, it cannot be reviewed on the merits in this habeas proceeding. Id. Hirning, however, contends that some of his Fourth Amendment claims were not effectively raised. Therefore, we review the procedural history of the trial court’s suppression decision only to consider the Fourth Amendment within the ineffective assistance claim.

[¶ 32.] Attorney Roubideaux, Hirning’s first lawyer on these charges, filed the first suppression motion. In the motion he argued that the property listed in the affidavit was not described with sufficient particularity. During the subsequent suppression hearing, Roubideaux orally amended the motion to also challenge the affidavit on grounds that it failed to establish probable cause. The motion was denied.

[¶ 33.] Hirning’s next attorney also filed motions to suppress. Palmer’s motions included a request for a reconsideration of the Roubideaux motion to suppress. As to that request to reconsider, the trial court stated:

I’m going to find that we’ve already had a hearing on the probable cause issue. Those matters could have been raised at [the previous suppression hearing] by Mr. Roubideaux, many — or some of those matters were raised or implied by Mr. Roubideaux, and the [Court has] found no basis for the same. Therefore, the motion for reconsideration is going to be denied today.

[¶ 34.] This record does not clearly indicate whether all available Fourth Amendment issues were raised by Roubideaux. At a later telephonic hearing, the State asked Judge Von Wald to clarify whether any suppression issues were waived by Roubideaux. The only clarification was the trial court’s statement that it:

[W]ould find that I did ask Mr. Roubi-deaux at the September 15, 1999 hearing if there was anything else that he wanted suppressed. He did respond “no” there was not. So I would want to make that finding on the record and that there has been that prior communication between the Court and the defendant’s counsel regarding this same issue.

[¶ 35.] From this record, we are unable to definitively determine whether all probable cause issues now asserted were actually litigated in the trial court proceedings. Nevertheless, Hirning’s request for habeas relief must fail. To the extent that Hirning’s Fourth Amendment issues were raised and considered by the trial court, they are not reviewable “on the merits during habeas review.” Scott, 532 N.W.2d at 402 (citing Willett v. Lockhart, 37 F.3d 1265, 1273 (8th Cir.1994)). And, to the extent that they were not raised and decided thereby invoking Hirning’s ineffective assistance claim, we note that “the independent source doctrine [ ] allow[s] partially tainted warrants if the remaining untainted information establishes probable cause.” State v. Boll, 2002 SD 114, ¶ 34, 651 N.W.2d 710, 719 (citations omitted). The habeas court concluded.that under the totality of the circumstances, probable cause existed for the issuance of the search warrant. Our de novo review of the affidavit, absent the objectionable inclusions, leads us to the same conclusion. We therefore find that any issues not raised would not have invalidated the warrant.

[¶ 36.] 4. Whether trial counsel was ineffective for failing to adequately raise Fourth Amendment and Due Process claims, and for having a conflict of interest.

[¶ 37.] Hirning first reiterates the preceding argument that he was prejudiced by Roubideaux’s failure to raise his appellate Fourth Amendment suppression issues. Hirning continues to assert that, had those issues been raised, “all of the evidence used against [him] would have been suppressed.” However, as we previously indicated, from our independent review of the affidavit, we find no prejudice because the affidavit established probable cause apart from any improper considerations.

[¶ 38.] Hirning next alleges a due process violation because Roubideaux failed to ask for Judge Von Wald’s disqualification. However, the habeas court pointed out that Roubideaux’s decision to not ask Judge Von Wald to recuse himself was a tactical decision. The habeas court noted that at the time Roubideaux would have made the recusal motion:

Judge Dobberpuhl had recused himself from this case and one of the remaining two circuit judges, Judge Lovrien, had already sentenced [Hirning] to concurrent ten year and five year sentences in the penitentiary. Obviously a tactical decision would be in order whether [Hirning] would benefit more from continuing with the case in front of Judge Von Wald or attempting to remove Judge Von Wald and then possibly facing a situation where Judge Lovrien was again assigned to the case and [Hirning] would then be unable to remove Judge Lovrien under state statutes.

Considering this tactical difficulty, we see no denial of effective assistance of counsel in the decision to not ask for a recusal.

[¶ 39.] Hirning finally argues that Roubideaux was ineffective because Roubideaux had a concurrent conflict of interest in representing both Hirning and Nolter. However, the State filed a motion to require separate counsel, and Hirning filed an affidavit consenting to Roubi-deaux’s initial concurrent representation.

[¶ 40.] Hirning, however, also points out that after Hirning’s suppression hearing, Hirning retained Palmer as his new counsel. Thereafter, Roubideaux continued in his representation of Nolter, and at Nolter’s sentencing hearing, “Roubideaux was blaming everything on Hirning.” Roubideaux made the following comments regarding Hirning:

(1) “I think that the Court should look at the broader picture of a young man that was addicted to methamphetamine and got involved with the Hirning operation.”
(2) “The Hirning residence is not the residence of Shane Nolter. That is not his residence; that’s not his operation.”
(3)“There were many visitors that came to the Milo Hirning place, and Shane’s visits were to obtain the drugs that he was addicted to and using himself.”

These comments, reflecting adversely upon Hirning, were made at Nolter’s sentencing hearing in front of Judge Von Wald. Thus, Hirning argues that when he later faced Judge Von Wald for a court trial and sentencing in his case, “he had to exist in a world in which the Court had heard the above comments.”

[¶ 41.] We initially note that we need not decide whether any attorney-client ethical obligations were breached by Mr. Rou-bideaux’s use of these arguments against a former client. In habeas corpus, we confine our review to jurisdictional and constitutional issues. Therefore, we only determine whether Roubideaux’s representation was constitutionally ineffective, assuming he breached an ethical conflict of interest rule.

[¶ 42.] Here, the most serious potential ethical violation and conflict would have been a disclosure of confidential client information from the prior representation. However, the habeas court did “not find that [the] statements [at issue] could have originated only from privileged communication occurring diming Mr. Roubideaux’s representation of [Hirning].” We agree. Furthermore, to the extent any other potential violations occurred, we note that the trial court found Hirning guilty based on stipulated facts. Therefore, the trial court made its determinations upon stipulated facts and a sentencing hearing, rather than the argument it heard in Nolter’s case. Consequently, we see no prejudice. “If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, ... that course should be followed.” Ramos, 2000 SD 111, ¶ 12, 616 N.W.2d at 93 (quoting Strickland, 466 U.S. at 697, 104 S.Ct. at 2069, 80 L.Ed.2d at 699). We hold that, even assuming Hirning has demonstrated some conflict of interest, he has shown no constitutional prejudice.

[¶ 43.] Affirmed.

[¶ 44.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP, and MEIERHENRY, Justices, concur.

      . The relevant statement by Denise Mills was made to the officer at the time of the stop. The officer asked Denise who owned the drugs that were found in the vehicle. Denise told the officer that the drugs "belonged to basically all of them.” Based on this answer and the behavior of the occupants of the car before and during the stop, the officer conducted a pat-down search of Hirning. Four baggies containing a substance later confirmed to be methamphetamine were found in Hirning's pants pocket.

      . Citing Holloway, 293 Ark. 438, 738 S.W.2d 796, reh’g denied, 293 Ark. 438, 742 S.W.2d 550; Toce, 6 Conn.Cir.Ct. 192, 269 A.2d 421, 422-23, petition denied, 158 Conn. 667, 259 A.2d 649; French, 252 Ind. 213, 247 N.E.2d 519, 525; Arnold, 421 S.W.2d 366, 366-67; Trussell, 67 Md.App. 23, 506 A.2d 255, 256-57, cert. denied, 306 Md. 514, 510 A.2d 260; Smith, 113 N.J.Super. 120, 273 A.2d 68, 78, cert. denied, 59 N.J. 293, 281 A.2d 806; Hawkins v. State, 586 S.W.2d 465 (Tenn.1979); Irwin, 441 S.W.2d 203, 208-09, cert. denied, 394 U.S. 973, 89 S.Ct. 1454, 22 L.Ed.2d 752; Waupoose, 46 Wis.2d 257, 174 N.W.2d 503, 504; United States v. Cansdale, 7 MJ 143 (CMA 1979).

      . Palmer's other motion was based on the allegation that the warrant contained false or fraudulent statements. The trial court held that Hirning “would have to show by a preponderance of the evidence that those false statements knowingly and intelligently occurred or were recklessly made with disregard for the truth.” The trial court ultimately determined that the affidavit was not prepared with the purpose of misleading the court, and that Hirning failed to meet his burden of proof. Thus, the issues raised by the Palmer motion were decided by the trial court.

      . Hirning’s affidavit stated:
      Milo Walter Hirning, being first duly sworn, on oath deposes and states:
      That he is the defendant in the above-entitled case and makes this affidavit at the request of his attorney, Ramon A. Roubi-deaux of Rapid City, South Dakota.
      After consultation with said attorney, and being advised of the South Dakota Rules of Professional conduct, Rule 1.7(a)(l)(2) and Rule 1.8 pertaining to conflicts of interest, affiant has advised said attorney that he is unaware of any conflict even though the respective pending charges arise from the same time of his contacts with Shane Nol-ter at his home in Aberdeen, South Dakota, and do not believe at this time that there could be any adverse relations arising between the two cases and clients, and affiant believes said attorney at this time states that the circumstances arising from their respective relationships will not be affected.
      Affiant also has been advised by his said attorney that as soon as the discovery material is received and his attorney aforesaid has reviewed same with both clients, and if there appears to be any adverse interest he will advise affiant and withdraw from representation of Shane Nolter. Otherwise af-fiant consents to both representations.

      . We do observe, however, that the South Dakota Ethics Committee has concluded that "[ajbsent consent after consultation, an attorney may not represent a client whose interest is adverse to a former client.” SD Ethics Comm., Formal Op.2003-7. That opinion is premised on Rule 1.9(a), which provides:
      A lawyer who formerly represented a client in a matter shall not thereafter represent another person in the same or substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client consents after consultation.
      The comments to the rule indicate that:
      After termination of a client-lawyer relationship, a lawyer may not represent another client except in conformity with this Rule. The principles in Rule 1.7 determine whether the interests of the present and former client are adverse.
      The second aspect of loyalty to client is the lawyer’s obligation to decline subsequent representations involving positions adverse to a former client arising in substantially related matters.
      Disqualification from subsequent representation is for the protection of clients and can be waived by them. A waiver is effective only if there is disclosure of the circumstances, including the lawyer's intended role in behalf of the new client.

      . Hirning does not challenge the severity of his sentence in this appeal.


author: GRIMSON, Judge.

text:
    George D. CROSSEN, as Special Administrator of the Estate of Felix D. Crossen, Deceased, Plaintiff and Respondent, v. David ROGNLIE, Defendant and Appellant.
    No. 7474.
    Supreme Court of North Dakota.
    Jan. 13, 1955.

      Degnan, Hager, McElroy & Lamb, Grand Forks, for appellant.
    Day, Stokes, Vaaler & Gillig, Grand Forks, for respondent.
   GRIMSON, Judge.

The defendant appeals from an order granting a new trial. The action is one for damages brought by the special administrator of the Felix D. Crossen estate. The complaint alleges that Felix D. Crossen was injured on the 4th day of November 1953; ‘that he was then walking north across Division Avenue in the City of Grand Forks, North Dakota, at the regular pedestrian crossing; that the defendant, David Rogn-lie, was driving his father’s family car south along Fifth 'Street and in making a left turn to go east on Division Avenue ■ struck the' decedent down; that from the injuries so received the decedent, Felix D. Crossen, died on December 29, 1953; that the collision was caused by the negligence of the defendant. Defendant answers, admitting that an accident happened at the time and place alleged in plaintiff’s complaint but denies any negligence on his part and sets up as an affirmative defense the ■contributory negligence of the decedent. The case was tried to a jury who found for the defendant, dismissing the action. The plaintiff moved for a new trial which' was granted by the district court. From the order granting'the new trial this appeal is taken.

The plaintiff alleges as grounds for a new trial

I.
“That the evidence of said action is insufficient to justify the verdict in favor of the Defendant and against the Plaintiff for dismissal of the action.
II.
“That the verdict is contrary to the evidence and the laws of the State of North Dakota, and is of such a character as to be properly set aside as a matter of the court’s discretion.”

A third ground alleged an error in the instructions to the jury, but was abandoned on this appeal and will not be considered. Clark v. Josephson, N.D., 66 N.W.2d 539, and cases cited.

The evidence shows that on the evening of November 4, 1953, the defendant, David Rognlie, was driving his father’s family car; that he and his friend, Donald Knut-son, both University students, had taken defendant’s sister, Kay, and her roommate, Judy Bateman, student nurses at the Deaconess Hospital, out for lunch. At the time the defendant was 18 years of-age and the rest of the young people were of similar ages. They were returning from the lunch at about 10 o’clock P. M. They came south on Fifth Street, Grand Forks, to the intersection where Division Avenue branches off Fifth Street towards the east. When driving in the last block before that intersection they heard an ambulance siren, slowed down and drove towards the berm on their right. Then they decided the ambulance wasn’t approaching them and continued. On approaching the intersection the defendant turned his signal lights on, signalling a turn to the left. He, however, at no time sounded his horn. At the same time Felix D. Crossen came from the south walking north on the east sidewalk of Fifth Street and started to cross Division Avenue at the regular pedestrian crossing on the east side of the intersection. He was 78 years of age, wearing a dark brown overcoat with an upturned collar.

The paving on both Fifth Street and Division Avenue is 50 feet wide. The paved portion of the intersection, therefore, is 50 feet square. On the berm at the southwest corner of this square is a power pole with an overhead arm extending approximately 21 feet out into the intersection on which was a light such as was used in the residential portion of Grand Forks. That light was almost over the center of the intersection. The defendant and his witnesses said the light was poor. The policemen, 'however, said the intersection was lit up fairly well. They made all their investigation by that light without use of any artificial light.

The defendant entered the intersection driving between 10 and 15 miles an hour. His lights were good. As he turned to his left onto the south side of Division Avenue he suddenly saw the deceased two or three feet ahead of him. The decedent at that time had almost reached the center line of Division Avenue, about 21 or 22 feet north of the south edge of the pavement on Division Avenue. The defendant says: “We were just making the turn and all of a sudden Mr. Crossen was right in front of us. The lights swung around and all of a sudden he was there.” Donald Knutson said: “We followed his lights — all of a sudden there as though he had come right up out of the ground or something I saw a man.” Both defendant and Knutson testified decedent, unaware of their approach, was walking north, carrying a package “in his left arm.” The defendant put on his brakes and stopped in about eight feet. His left light was broken. The decedent was somehow carried or pushed ahead so that after the car stopped he was lying in an easterly direction with his feet about a foot in front of the car and his head towards the east. Decedent’s head and left side were badly injured. The boys immediately secured a stretcher and took the decedent to the nearby Deaconess Hospital where he remained till his death December 29, 1953.

A new trial on the application of the party aggrieved may be granted on the ground of the insufficiency of the evidence to justify the verdict or that it is against the law. Section 28-1902, subdivision 6, NDRC 1943. It has been repeatedly held by this court that the question of whether a new trial should be granted because of the insufficiency of the evidence is within the sound discretion of the trial court. Pengilly v. J. I. Case Threshing Machine Co., 11 N.D. 249, 91 N.W. 63, 12 Am.Neg.Rep. 619; Froh v. Hein, 76 N.D. 710, 39 N.W.2d 11; Haslam v. Babcock, 71 N.D. 363, 366, 1 N.W.2d 335; Burdick v. Mann, 60 N.D. 710, 236 N.W. 340, 82 A.L.R. 1443; Baird v. Clooten, 60 N.D. 699, 236 N.W. 356; Martin v. Parkins, 55 N.D. 339, 213 N.W. 574; Kohler v. Stephens, 74 N.D. 655, 24 N.W.2d 64.

The district court may grant a motion for a new trial when there is substantial conflict in the evidence if in its discretion it finds that the evidence does not justify the verdict. Ross v. Robertson, 12 N.D. 27, 94 N.W. 765; Haslem v. Babcock, 71 N.D. 363, 366, 1 N.W.2d 335.

When the court has granted a new trial this court will not disturb such decision if the evidence shows that the trial court exercised legal discretion in the matter. The only question in such cases for the appellate court to consider is whether or not the trial court abused its discretion. If not, its decision will not be disturbed. Baird v. Clooten, 60 N.D. 699, 236 N.W. 356; Pengilly v. J. I. Case Threshing Machine Co., 11 N.D. 249, 91 N.W. 63, 12 Am.Neg. Rep. 619; Ross v. Robertson, 12 N.D. 27, 94 N.W. 765; Johnson v. Patterson, 67 N.D. 132, 270 N.W. 97; Krueger v. North American Creameries, 75 N.D. 264, 27 N.W.2d 240; Kohler v. Stephens, 74 N.D. 655, 24 N.W.2d 64; Martin v. Parkins, 55 N.D. 339, 213 N.W. 574; Baird v. Unterseher, 57 N.D. 885, 224 N.W. 306; State v. Hummel, 73 N.D. 308, 14 N.W.2d 368.

The discretion of the trial court should be exercised in all cases in the interest of justice and where it appears to the judge that the verdict is against the weight of the evidence it is his duty to set it aside. State v. Weber, 49 N.D. 325, 191 N.W. 610; Kohlman v. Hyland, 56 N.D. 772, 219 N.W. 228; Clark v. Great Northern R. Co., 37 Wash. 537, 79 P. 1108; Aetna Casualty & Surety Co. v. Yeatts, 4 Cir., 122 F.2d 350; Durick v. Winters, 70 N.D. 592, 296 N.W. 744.

To reverse an order granting a new trial because of the insufficiency of the evidence, this court must be convinced that there are strong and cogent reasons for concluding that the trial court was not exercising legal discretion in weighing the evidence. Durick v. Winters, 70 N.D. 592, 296 N.W. 744; Martin v. Parkins, 55 N.D. 339, 346, 213 N.W. 574; Butler v. Aetna Ins. Co., 64 N.D. 764, 256 N.W. 214.

Orders granting new trials stand on a firmer foundation in an appellate court than orders denying them. Gull River Lumber Co. v. Osborne McMillan Elevator Co., 6 N.D. 276, 69 N.W. 691; Pengilly v. J. I. Case Threshing Machine Co., 11 N.D. 249, 91 N.W. 63, 12 Am.Neg. Rep. 619; Kohlman v. Hyland, 56 N.D. 772, 219 N.W. 228; Martin v. Parkins, 55 N.D. 339, 346, 213 N.W. 574.

The reason for discriminating in favor of such orders is that they are not decisive of the case, but, on the contrary, only open the way for a reinvestigation of the entire case upon its facts and merits. Pengilly v. J. I. Case Threshing Machine Co., 11 N.D. 249, 91 N.W. 63, 12 Am.Neg.Rep. 619; Kohlman v. Hyland, 56 N.D. 772, 219 N.W. 228.

Upon a, motion for a new trial, a margin of discretion is vested in the trial court which permits it, with a view to promoting the ends of justice, to weigh the evidence, and within certain limitations, act upon its own judgment with reference to the weight and credibility thereof. Martin v. Parkins, 55 N.D. 339, 346, 213 N.W. 574.

What is sound discretion has been defined by the courts. In Russell v. Foley. 278 Mass. 145, 179 N.E. 619, 621, the court says:

“Sound judicial discretion implies calmness, conscience, courage, impartiality, wisdom and discernment of the just result.”

See also Louisiana Farmers Protective Union v. Great Atlantic & Pacific Tea Co., D.C., 83 F.Supp. 646, 654; Nation v. Savely, 127 Okl. 117, 260 P. 32.

This discretion, however, must be exercised by the trial court with caution, consideration and calm judgment.

“ ‘But discretion when applied to a court of justice means sound discretion guided by law. It must be governed by rule, not by humor: it must not be arbitrary, vague, and fanciful, but legal and regular.’ ” Rex v. Wilkes, 4 Burr. 2527, 98 Eng.Reprint 327. This is quoted with approval in Kohlman v. Hyland, 56 N.D. 772, 219 N.W. 228, 230. In that case also Clifford v. Denver, S. P. & P. R. Co., 12 Colo. 125, 20 P. 333, 335, is quoted to the effect that discretion is based “ ‘on the theory that the judge who tries a case, having the parties, their witnesses and'counsel before him, with opportunity to observe their demeanor and conduct during the trial, and to note all incidents occurring during its progress likely to affect the result thereof, is better qualified to judge whether a fair trial has been had, and substantial justice done, than the appellate tribunal.’”

The defendant admits the trial court has the discretion to grant a new trial but contends that in the instant case the court abused that discretion. Whether it did or not is the only question for us to determine.

The district judge filed a memorandum decision as required by Section 28-1906, NDRC 1943. That memorandum reflects his knowledge of the law and his powers, duties and responsibilities in regard to granting a new trial. After the discussion of the legal questions and a review of the evidence, he concludes:

“Entertaining the view that I do with reference to the injustice of the jury’s verdict and that it is contrary to the weight of the evidence, and taking into consideration the legal authorities applicable to such a situation, my conscience gives me no option except to grant the motion for a new trial.”

The substance of the evidence has been heretofore set forth in this opinion. This evidence is conflicting. It reasonably permits some inferences favorable to the plaintiff and others favorable to the defendant. In addition to what is shown by the record on appeal the trial court had before him all the incidents and happenings in the courtroom during the progress of the trial. There is nothing in the record to indicate that the trial judge’s conclusion that the preponderance was in favor of the plaintiff was unreasonable or arbitrary. It is clear, therefore, that there was no abuse of his legal discretion.

The order of the district court is affirmed.

BURKE, C. J„ and MORRIS, SATHRE and NELS G. JOHNSON, JJ., concur.


author: JOHNSON, Judge.

text:
    Betty Lou BELT, Plaintiff and Appellant, v. CITY OF GRAND FORKS, Defendant and Respondent.
    No. 7477.
    Supreme Court of North Dakota.
    Jan. 13, 1955.

      Duffy ' & Haugland, Devils Lake, and Lyche & Lyche,'Grand Forks, for plaintiff and appellant..
    Harold D. Shaft, Grand Forks, for defendant and respondent.
   JOHNSON, Judge.

This is an action against the City of Grand Forks, a municipal corporation, for damages resulting from an automobile accident that occurred at about 11:30 p. m. on May 9, 1952. The plaintiff was a passenger in a 1947 Ford sedan operated by her husband, Freeman Belt. He, together with the plaintiff, Fred and Ruth Holweger, the father and mother of the plaintiff, and Franklin Holweger, a brother of the plaintiff, were occupants of the automobile at the time of the accident. Freeman Belt was driving west along Ninth Avenue South in the city of Grand Forks, towards South Washington Street. The accident happened across South Washington Street as it intersects Ninth Avenue South.

South Washington Street runs north and south. It is the dividing line between two subdivisions of the city of Grand Forks, Villard’s .and McKelvey’s Additions. Both additions were established and approved by the city council in June of 1882. The platting of these additions so far as street intersections are concerned,'has remained unchanged to this day. South Washington Street is platted to the width of eighty feet. So is Ninth Avenue South on the east side of South Washington Street. On the west side of South Washington Street, Ninth Avenue South is seventy-eight feet wide. South Washington Street is not improved to its full width of .eighty feet. At the time of the accident it was graveled in the middle with a shallow ditch along the west side. The streets on the east of South Washington Street do not match up with the streets or. the west side. Those on the west side are about ninety-seven feet north of those on the east side, so that the south line'of Ninth Avenue South, west of South Washington Street, lies about seventeen feet north of the north line of Ninth Avenue South to the east of South Washington Street. In other words, when traveling west at the intersection of Ninth Avenue South with South Washington Street, there is a jog to the right. A vehicle driving west on Ninth Avenue South as it approaches and gets into the intersection with South Washington Street, must make a right, turn on. South Washington Street and go north some sixty, or seventy feet, and-then turn left to proceed west on Ninth Avenue South. The accident involved in this action occurred when the plaintiff’s husband failed to make the turn and drove his car straight across South Washington Street into a shallow ditch. After crossing the ditch the car hit an embankment on the west edge of South Washington Street. The embankment was from one and one-half to two feet high. The car came to a sudden stop and the plaintiff received the injuries of which she complains and which are the basis of this action.

The car was being driven thirty miles per hour at the time of the accident, with head lights on dim. The testimony shows that they would give clear vision for only about forty feet. The members of plaintiff’s family were talking and visiting as they approached South Washington Street. No one noticed that Ninth Avenue South does not continue straight west after crossing South Washington Street. Some residences are located straight west across South Washington Street. The plaintiff’s-husband drove across South Washington Street, directly west, towards these residences. They are located to the south of the jog in Ninth Avenue South.

The evidence further shows that the plaintiff had lived in Grand Forks since 1935 and her husband since 1936, except for five years in the army. It appears that neither the plaintiff nor the other occupants of the car were acquainted with the intersection at which the accident occurred. The plaintiff’s husband says that he “thought” South Washington Street was marked with stop signs, although he did not remember that he had ever been on this street before. He did not see the road continue beyond South Washington Street, nor did he notice the embankment on the west , side until he was upon it.

There is no evidence in the record to show that there were any defects or obstructions in either Ninth Avenue South or South Washington Street. There is no evidence of lack of maintenance in the record.

The plaintiff contends there was no street light burning at the intersection of South Washington Street and Ninth Avenue South at the time of the accident. This is denied by witnesses for the defendant. There was no stop sign or highway sign indicating a turn at the intersection of South Washington Street and Ninth Avenue South at the point of the accident, nor was there any dead end warning on the west side of South Washington Street, to warn people that traveled Ninth Avenue South going west that they could not proceed due west across South Washington Street.

It is not necessary for a proper understanding of this case to set forth the entire contents of the complaint. It is alleged that the defendant is a municipal corporation; that it is the owner of the streets and avenues of the city, and that at the time of the accident involved in the action it had supervision and control thereof, and that it was the duty of the municipality or its agents to keep said streets and avenues safe and free from danger, properly lighted with appropriate signs to warn of danger ahead so that the public might travel thereon by motor vehicle or other means of conveyance. Then the complaint alleges that the plaintiff was a passenger in the car mentioned, operated by her husband, traveling on Ninth Avenue South in the city of Grand Forks, going west at a low and reasonable rate of speed in a careful, prudent manner; that the automobile in which the plaintiff was a passenger was in good shape and under proper control; that it was after dark and that the plaintiff’s husband came to the west end of Ninth Avenue South, or the so-called “dead end” touching South Washington Street, which had a ditch on the west side; there was no indication of a stop sign or a sign to turn right or left, nor any sign or light to indicate there was any danger ahead upon reaching South Washington Street; that it was the duty of this city to guard and protect travelers and the public and to have suitable warnings or barriers to prevent travelers on said street from running into the ditch (on the west side of South Washington Street); that said ditch was so deep as to be dangerous; that the city failed and neglected to do so, and had permitted the ditch to remain open, uncovered, and unprotected, without barrier or warning, and that Freeman Belt, the husband of the plaintiff, while driving with care and caution, traveled on Ninth Avenue South; that the ditch was hidden and unnoticeable.

The defendant admits that the city of Grand Forks is a municipal corporation, but otherwise denies the allegations and asserts that if the plaintiff suffered any injuries as a result of the accident, they were caused solely and only by the negligence of Freeman Belt in that he drove his motor vehicle without care and caution at a high and dangerous rate of speed in excess of the speed limits of the city of Grand Forks, which it is asserted is twenty miles per hour at the place of the accident; that because of the excessive speed at which Freeman Belt was driving, he was unable to bring his vehicle to a stop within the assured clear distance ahead of his lights at the time and place of the accident, and that he was not in full control of his automobile, and further that he was under the influence of intoxicating liquor, and that the plaintiff had knowledge of the condition of the said Freeman Belt, the driver of the car. The answer further sets up that the plaintiff was guilty of negligence that contributed to her injury, and that the plaintiff was well acquainted with the nature of the road upon which the motor vehicle was being driven and knew, or should have known that her husband was driving his car at a dangerous and unlawful rate of speed in light of the condition of the road and the location, and that she knew that her husband, Freeman Belt, was under the influence of intoxicating liquor; that she chose to ride with him at ?aid time and place, but failed to protest against his careless, reckless, and negligent operation of the automobile; that the defendant has no knowledge of the nature and extent of the injuries suffered by the plaintiff, and asks for a dismissal of the action.

The case was tried to a jury. At the completion of the presentation of the plaintiff’s evidence, the defendant moved for a dismissal of the action: first, on the ground that the plaintiff failed to state a cause of action against the defendant; second, that the evidence wholly failed to establish a cause of action against the defendant; and third, that the plaintiff, as a matter of law, was guilty of contributory negligence barring a recovery. The court withheld ruling on the motion until after the defendant had presented its evidence. The defendant then renewed its motion to dismiss on the same grounds. The court then dismissed the action. The plaintiff appeals from the judgment of dismissal entered pursuant to the motion.

The plaintiff and appellant bases her contentions of negligence on the following asserted defects in the street :

1. That the city was negligent in constructing and improving only about the middle thirty feet of South Washington Street with a gradual sloping ditch on the west side ending in an embankment some one and one-half to two feet in height;

2. Permitting vegetation to grow on the embankment.

3. Placing stop signs at Second Avenue North, eleven blocks away from the scene of the accident, and at Fifth Avenue South, four blocks away, but failing to place a stop sign at Ninth Avenue South where the accident occurred.

4. Failure of the city to warn of a turn in the road or to place a dead end sign or erect a barrier where the accident occurred.

5. Failure of the city to maintain a light at this intersection.

6. That the city permitted these conditions to exist in and adjacent to the street.

These acts of negligence are urged as the plaintiff’s basis of recovery. ' The sole question for decision is whether or not they constitute actionable negligence on the part of the defendant. Our discussion will be confined to the acts of negligence thus urged.

The defendant maintains that it is immune from liability for negligence in the exercise of a governmental function. The governmental function theory absolves a municipality from a liability for negligence in the performance of a governmental function, power or duty which it is authorized to perform. This theory has been recognized in several cases in this court. Montain v. City of Fargo, 38 N.D. 432, 166 N.W. 416, L.R.A.1918C, 600; Moulton v. City of Fargo, 39 N.D. 502, 167 N.W. 717, L.R.A. 1918D, 1108; Hanson v. Berry, 54 N.D. 487, 209 N.W. 1002, 47 A.L.R. 816; Hamilton v. City of Bismarck, 71 N.D. 321, 300 N.W. 631. It is not necessary to determine whether the governmental function theory applies in this case as it can be decided on other grounds.

No statute or ordinance has been found or pointed out which imposes the duty upon the city to erect stop, warning or dead end signs indicating á jog in the street, or to place barricades at such points in a street or to require the lighting of city streets. Nor has any statute or city ordinance been pointed out that would require the city to cut down or keep under control vegetation upon property adjacent to the improved traveled part of a street.

“ ‘Neglect’, ‘negligence’, ‘negligent’, and ‘negligently’, import a want of such attention to the nature or probable consequences of the act or omission as a prudent man ordinarily bestows in acting in his own concerns”. Section 12-0104(2), NDRC 1943.

Judge Cooley, in his work on torts, defines negligence as: “The failure to observe, for the protection of the interests of another person, that degree of care, precaution and vigilance which the circumstances justly demand, whereby such other person suffers injury.” Cooley Torts, (3d. Ed.), pages 1324, 1325.

Negligence presupposes a duty. As negligence is failure to perform a duty, there can be no negligence where there is no duty.

If there is a duty and that duty is not performed, the failure to perform it, if the proximate cause of an injury, may result in liability against a municipality. The rule in this state has become well established that a municipality is under legal obligation to exercise reasonable care to keep its streets in a safe condition for the use of the public. This rule has been stated in many different cases. The early case of Larson v. City of Grand Forks, 3 Dak. 307, 313, 19 N.W. 414, 415, 416, states it this way:

“It is incumbent on the city, having full control of the streets therein and of the improvement thereof, to keep them in a reasonably safe condition, and if it neglects to do so it will be liable for injuries happening by reason of its negligence.”

Also see Ludlow v. City of Fargo, 3 N.D. 485, 57 N.W. 506. Again in Hanson v. Berry, 54 N.D. 487, 494, 209 N.W. 1002, 1005, 47 A.L.R. 816, it is said:

“The rule that subjects a municipality to liability for the failure to maintain its streets in a reasonably safe condition, though generally established and well approved, is nevertheless exceptional and anomalous. 4 Dillon on Municipal Corporations, (5th Ed.) §§ 1714, 1715. This exception, however, is predicated upon a duty with respect to the physical condition of the streets * * * which may in turn affect the convenience or safety of those who may have occasion to use the public streets.”

Maloney v. City of Grand Forks, 73 N.D. 445, 15 N.W.2d 769. The rule thus stated has no application to the facts in the case at bar.

In the case of Braatz v. City of Fargo, 19 N.D. 538, 544, 125 N.W. 1042, 1044, 27 L.R.A.,N.S., 1169, this court quotes with approval from the case of Town of Spencer v. Mayfield, 43 Ind.App. 134, 85 N.E. 23, saying, “ ‘A municipal corporation is only required to guard against such dangers in its streets as can or ought to be anticipated or foreseen in the exercise of reasonable prudence and care.’ ” This case quotes Judge Dillon in his work on Municipal Corporations, Volume 2, (4th Ed.), section 1005, as follows:

“ ‘Thus towns are not necessarily bound to fence or erect barriers to prevent travelers from getting outside of the road or way. A municipal corporation may determine for itself to what extent it will guard against mere possible accidents, and if it be not guilty of negligence, the judicial tribunals are not to say it shall suffer in damages for not giving to the public more complete protection, since that would practically take the administration of municipal affairs out of the hands to which it had been intrusted by law;’ We are firmly impressed both with the correctness and justice of the rule as above announced. To hold municipalities to a higher degree of care would be, in effect, requiring them to become insurers of the safety of their streets and walks, which is not exacted by any court.”

The evidence here discloses that it was obvious that Ninth Avenue South did not proceed due west as it entered the intersection with South Washington Street; that there was a turn to the right; that there are residences and other buildings straight west of the embankment into which the plaintiff’s husband drove his automobile. The curve or jog to the right, in itself, was notice to an observant driver. The claim of negligence here is based on failure to warn, guard, notify, or fortify by barricade the west side of South Washington Street.

It is well settled that a city has the right to improve and open for public travel only a portion of a platted street, and a city is not liable for injuries to persons using a portion of the street which a city has not undertaken to improve. Sparks v. Kansas City, 236 Mo.App. 710, 160 S.W.2d 819; Clinkenbeard v. City of St. Joseph, 321 Mo. 71, 10 S.W.2d 54, 61 A.L.R. 242; Griffin v. City of Chillicothe, 311 Mo. 648, 279 S.W. 84, 42 A.L.R. 1273; City of Waco v. Darnell, Tex.Com.App., 35 S.W.2d 134.

The extent to which a street is improved is a matter that rests in the sound discretion of the municipal authorities. A city has a right to prepare a way of a width which in its discretion will accommodate the public in the middle of a dedicated or platted street without assuming any duty or liability with respect to the portion of the street that is allowed to remain in the state of nature or unimproved. See Barton v. King County, 18 Wash.2d 573, 139 P.2d 1019. We hold that the city of Grand Forks was not negligent by reason of improving only the middle thirty feet of South Washington Street or Ninth Avenue South.

It has also been held that a municipality is not liable to an occupant of an automobile injured in a collision at an intersection merely because it has allowed the view to be obstructed by high grass, weeds and bushes which have grown up in a portion of the street not maintained for public travel. Owens v. Town of Booneville, 206 Miss. 345, 40 So.2d 158. See also Barton v. King County, supra.

In the case of Henderson v. City of St. Paul, 216 Minn. 122, 11 N.W.2d 791, 793, the court discusses jogs, goosenecks and cul-de-sacs in city streets, and says:

“Merely because a street turns or jogs around a parkway does not place a duty on the city to erect and maintain warning signs or lights. Such irregularities in streets are so common that the burden of providing warning lights or signs in all such instances and in all municipalities would be disproportionate to the probable danger likely to be encountered by the ordinarily prudent automobile driver.
“A different situation is presented if by reason of peculiar facts or circumstances a pitfall, trap, or snare dangerous to the wayfarer is created. That exception is well illustrated in the recent case of Ollgaard v. City of Marshall, 208 Minn. 384, 294 N.W. 228, where our prior cases are cited.”

In the case at bar, the facts clearly show that no pitfall, trap or snare dangerous to a wayfarer was created by the jog or turn in this street.

We do' not think that a city is chargeable with liability for failure to maintain barriers, lights or warning signs or notices at the point of an offset or jog in a street, where the same could not constitute a dangerous situation to a prudent driver. In nearly every city of any size some streets are laid out and improved without uniformity as to width or direction, resulting in “jogs”, “offsets”, or “goosenecks”. We are convinced that the law does not require a municipality to maintain either barriers or warning devices at such places. Waldorf v. City of Alhambra, 6 Cal.App.2d 522, 45 P.2d 207 (review denied by supreme court).

Aside from statutory or charter requirements, a city or town is under no duty to light its streets; it may, if it chooses, leave them unlighted and cannot be held liable in damages to a traveler who is injured solely because of its failure to light them. See Volume 19, McQuillin’s Municipal Corporations 3d Ed. section 54.101, page 363 and cases cited in note 12.

The facts in this case indicate a conflict in the evidence as to whether the intersection at which this accident occurred was lighted. Resolving the facts in this connection most favorably to the plaintiff, since there is no duty to light streets, the defendant was not negligent if it failed to do so.

There were no defects or obstructions in the street itself. The embankment encountered by the plaintiff’s husband was outside of the traveled portion of the street. Since no duty was impos.ed upon the city of Grand Forks in connection with any of the alleged acts of negligence urged as a basis for recovery, the plaintiff’s action fails. There is no actionable negligence shown upon which the plaintiff can predicate liability.

The plaintiff cites the following cases as a basis for recovery against the defendant: Ludlow v. City of Fargo, 3 N.D. 485, 57 N.W. 506; Chacey v. City of Fargo, 5 N.D. 173, 64 N.W. 932; Heckman v. Evenson, 7 N.D. 173, 73 N.W. 427; Wells v. City of Lisbon, 21 N.D. 34, 128 N.W. 308; Jackson v. City of Grand Forks, 24 N.D. 601, 140 N.W. 718, 45 L.R.A., N.S., 75; Anderson v. City of Jamestown, 50 N.D. 531, 196 N.W. 753; Maloney v. City of Grand Forks, 73 N.D. 445, 15 N.W.2d 769.

Ludlow v. Fargo, supra, involved an unlighted, unguarded ditch .across the street. Chacey v. Fargo, supra, involved a loose block in a public sidewalk. Heckman v. Evenson, supra, was a suit against an abutting owner for injuries caused by a load of stones piled by him on the public street next ;to the sidewalk. Wells v. Lisbon, supra, involved an improperly lighted excavation in the public street. Jackson v. Grand Forks, supra, involved rough snow and ie.e on a public sidewalk. Anderson v. Jamestown, supra, involved a hole in a sidewalk which had been there for a long time. Maloney v. Grand Forks, supra, involved an unevenness or depression in the public sidewalk. None of these cases are similar on the facts to the case at bar.

The following cases, in addition to those cited by the plaintiff and appellant, also deal with obstructions and defects in streets and sidewalks, or adjacent thereto: Ouverson v. City of Grafton, 5 N.D. 281, 65 N.W. 676; Larson v. Grand Forks, 3 Dak. 307, 19 N.W. 414; Sanders v. Reister, 1 Dak. 151 (145), 46 N.W. 680; Braatz v. City of Fargo, 19 N.D. 538, 125 N.W. 1042, 27 L.R.A.,N.S., 1169; Gagnier v. Fargo, 11 N.D. 73, 88 N.W. 1030; Pyke v. City of Jamestown, 15 N.D. 157, 107 N.W. 359; Johnson v. City of Fargo, 15 N.D. 525, 108 N.W. 243.

Ouverson v. Grafton, supra, involved a threshing machine left by the city on the public street. Larson v. Grand Forks, supra, involved an over-hanging awning on sidewalk which fell and injured the plaintiff. Sanders v. Reister, supra, was an action against the abutting owner for an accident caused by a hole adjoining the public street. Braatz v. Fargo, supra, involved injuries sustained when a woman, frightened by the whistle of a bicycle rider, stepped off the sidewalk into a drainage ditch under it. Gagnier v. Fargo, supra, involved injuries to a bicycle rider on a defective sidewalk. Pyke v. Jamestown, supra, involved a defective public sidewalk with a hole where a portion of the block was out. Johnson v. Fargo, supra, involved a wire from a fruit stand fastened to the sidewalk.

These are all the North Dakota cases that have come to our attention, except the case of Trihub v. City of Minot, 74 N.D. 582, 23 N.W.2d 753. All of them, with the exception of the Trihub case, involve the common law rule that a city is liable in damages for defects in its streets or sidewalks. These cases are not in point here. They involve entirely different facts and circumstances than the case at bar.

We believe that the Trihub case is no authority on either side of the issues involved in this action. That case involved an unprotected “coal pit” immediately beyond the end of a dead end street. The case does not disclose who erected the barrier on the south side of the coal pit. It is apparent from the facts, however, that the coal pit was extremely hazardous and inherently dangerous to motorists. It was fifteen feet wide, twenty-two feet long, and the depth of the floor of the coal bin in the pit was nine feet from the top of the wall as originally constructed across the south end of the pit and bin at the property line at the north end of Third Street S. W., Minot, North Dakota. The cause of action of the plaintiff, whose husband died as a result of driving through this barricade, was predicated upon the negligence of defendants in permitting the barricade to become dilapidated and to allow the coal pit to be without proper protection. This situation created a dangerous pitfall to a traveler. That case is distinguishable from the case at bar on the facts. Here the facts show that the plaintiff’s husband drove off the traveled portion of the highway into a place which was not in itself dangerous, and does not, in any sense, come within the exception to the rule as set forth in Henderson v. City of St. Paul, 216 Minn. 122, 11 N.W.2d 791.

A multitude of cases involving facts more or less similar to those involved here could be cited, but it would serve no useful purpose, as they conclusively establish that under similar facts and circumstances there is no duty or want of care on behalf of a municipal corporation, and consequently no negligence or liability for damages.

It is sufficient under the ordinary standard of care for a city to maintain its streets, alleys and sidewalks, free from defects or from creating extraordinary or unusual hazards. This has been well expressed in the case of Waldorf v. City of Alhambra, 6 Cal.App.2d 522, 45 P.2d 207, 209:

“Nor do we think that the city is chargeable with liability in failing to maintain* barriers, lights or warning signs or notices at the point of ‘offset’ or ‘jog’ in the street. In almost every city of size in this state some streets are laid out and improved without uniformity as to width or direction, resulting in so-called ‘jogs,’ ‘offsets,’ or ‘goosenecks,’ some ending at cross streets and some even forming cul-de-sacs. We are convinced that the law does not require a municipality to maintain either barriers or warning devices at ‘jogs’ or ‘offsets’ of the construction, nature, and appearance of that described in the complaint herein. To the prudent operator of a motor vehicle, acting within the scope of the law governing his own conduct in traversing a public street in the nighttime, the pavement, curb, sidewalk, and the parkway with the trees or poles therein constitute a barrier or warning sufficient to avert disaster and as readily visible to the alert driver as a sign informing him of the condition; there being nothing to conceal the real condition nor to deceive the operator of an approaching automobile while driving at a lawful rate of speed with due caution.”

There was nothing to conceal the fact that Ninth Avenue South did not proceed directly westward. Nor was there anything to prevent a prudent operator of a motor vehicle from observing that Ninth Avenue South jogged to the right.

Under all the facts and circumstances, the defendant was not guilty of any negligence and no liability exists for damages to the plaintiff.

The acts urged by the plaintiff and appellant as negligence on the part of the defendant, as a matter of law, do not constitute a cause of action against the defendant. Since, as a matter of law, the plaintiff did not prove an action against the defendant, the granting of the defendant’s motion to dismiss and the entry of judgment on the merits thereon, if error, was error without prejudice and will not be disturbed on appeal. The judgment of the trial court is affirmed.

BURKE, C. J., and CRIMSON, MORRIS and SATHRE, JJ., concur.