This section contains the nature of the case and procedural background.

While a grinder was operating, P began greasing the grinder in preparation for the next grinding job at another location. D attempted to place another bale in the grinder tub. The 1,200-pound bale fell out of the tub and struck P, severely injuring him. P and his wife, sued D, claiming D negligently operated the tractor-loader. D alleged P's own negligence in approaching the grinder tub to grease the machine while it was still operating proximately caused his injuries. Ps did not request an instruction which would have advised the jury how its comparative fault findings might impact an award of damages. Under North Dakota's comparative fault law, P would not be able to recover damages if their fault was 'as great as the combined fault of all other persons' who contributed to the injury. The jury returned its verdict, finding D 50% at fault, and P 50% at fault. P had also incurred $100,000 in past and future economic and noneconomic damages. The trial court dismissed with prejudice Ps' claims because both were equally at fault. Ps moved for a new trial. The trial court denied the motion. Ps appealed.

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