228 N.W. 347 | Minn. | 1929
The accident occurred on Sunday afternoon on highway No. 3 just outside of Winona. Both cars were eastward bound. Deceased was attempting a "U" turn. He was struck when squarely across the 18-foot concrete pavement and when, according to the testimony, he had gotten pretty well over the center line. There is evidence that decedent started his turn at a point where a wide private driveway joins the pavement from the south; that he did not make the turn entirely on the driveway; that the left wheels of his car never left the pavement, but that he turned partly on the driveway and partly on the pavement and quite sharply to the left; that some distance, probably half a block before commencing the turn, he looked to his rear and extended his hand as a warning signal (as required by law, L. 1927, p. 563, c. 412, § 17) to motorists behind him, and that he kept his hand extended, holding "it out there some time" (as it was put on cross-examination of a witness for plaintiff) just before "he started to turn around." It was testified also that just before the collision defendant was driving at from 40 to 50 miles per hour, a rate which would carry him from 58 to 73 feet per second. Defendant admits that he saw deceased making the turn but insists that it was made entirely off the pavement and on the driveway and that he "thought maybe he would do like the rest and stop before he came back on the highway." He does not admit that deceased gave any warning signal. *88
It is too much to ask this court to disturb a verdict based upon such evidence. The conflict in the testimony of witnesses for plaintiff, not as serious as counsel for defendant claim, does not permit its rejection. Its weight was for the jury. The deceased had the right to make the turn. The evidence for plaintiff supports the jury in their conclusion that he exercised due care in doing so. There is evidence, equally believable, of defendant's negligence. His speed and the fact that he did not see the signal of the deceased (which the jury must have believed was given) are sufficient to support the conclusion that he was negligent. We have considered the arguments pro and con based upon what are supposed to be undisputed physical facts but find nothing which would justify us in disturbing the verdict.
On the premise that "there is no evidence that the decedent ever * * * saw the appellant's car," counsel cite Sorenson v. Sanderson,
The foregoing covers all of the assignments of error except one going to misconduct of counsel for plaintiff. There was misconduct. A witness for plaintiff just having concluded his testimony, counsel for plaintiff stated to the court in the presence of the jury that they had another witness who would testify to the same effect but who was not then in court and who did not testify. The statement was obviously improper and utterly without excuse. But it was immediately rebuked by the trial judge and the jury told to disregard it. By the order denying the motion for new trial, it was held "not important." We do not feel at liberty to disagree with that conclusion of the judge who tried the case and witnessed the incident to the extent of granting a trial upon the ground alone of the misconduct.
Order affirmed. *90