281 N.W. 261 | Minn. | 1938
Lead Opinion
The impact occurred in daylight at the right-angle intersection, three miles south of the southern limits of the city of Minneapolis, of county highway No. 52, also known as Nicollet avenue, and rural Hennepin county road, known as Eighty-sixth street south. The former lies north and south; the latter east and west. Plaintiff approached from the west, on Eighty-sixth street, in his ton-and-one-half Chevrolet truck; Harry Thompson, employe of defendant and owner of a Chevrolet sedan, came from the south on highway No. 52. Eighty-sixth street is a rough gravel road from 9 to 14 feet wide. Highway No. 52 has a smooth, bituminous-treated surface. Its "black top" is about 27 feet wide. From shoulder to shoulder its width is 36 to 37 feet. The country is flat. There is a clear view in all directions. There were no distracting circumstances on either road at the time of the collision.
We adopt defendant's argument that plaintiff was guilty of contributory negligence as a matter of law. So we must and do put the evidence in the light most favorable to plaintiff. Plaintiff testified to having seen Thompson's car at least four times at various distances south of the point of collision, and that it was traveling from 50 to 60 miles per hour until the collision. The first time plaintiff was about 200 feet west and going at about 30 miles an hour. Then Thompson was 400 to 500 feet to the south. When plaintiff was 30 feet from the intersection he saw Thompson's car 150 to 175 feet away. At that point plaintiff released his accelerator and let his truck coast at the rate, as he says, of about 20 miles an hour into the intersection.
Plaintiff's testimony is that as he entered the intersection Thompson's automobile was still about 100 to 125 feet south of it and apparently not slackening its speed. He testified that "I entered the intersection first, and I expected him to slack up and let me through." The next view plaintiff had of the oncoming car took place when the former was in the center of the intersection, halfway *427 across, and the latter about 50 to 60 feet south. It does not appear at what speed Thompson's car was then going. The impact occurred about 13 feet east of the center line of the highway, on its eastern edge. Whether the plaintiff's car struck Thompson's or vice versa, the testimony is in conflict both as to the observation of witnesses and the physical facts. As to that it is significant, but not controlling, that without objection of counsel for plaintiff the jury was instructed as follows:
"I think it is undisputed that the Thompson car passed, or was about to pass in front of the Haeg car and that the Haeg car struck the Thompson car on its side near the left front, and that the motor of the Haeg car was driven back some distance toward the cab."
It is not for us to decide which car ran into the other. But, on the evidence, no one may deny that Thompson's car did pass in front of and to the east of plaintiffs' car. The latter, by the impact, was turned sharply to its left and came to rest on its side a short distance north of the point of collision on the east shoulder of Nicollet avenue. Thompson's car continued on northeasterly some 40 or 50 feet, right side up off the road.
It is important that, coming as it was from plaintiffs' right, Thompson's car had the statutory right of way unless the latter had forfeited such right by reason of excessive speed. The latter, as to both right of way and the forfeiture of it, were given to the jury by the charge. Thompson admits a speed of about 45 miles per hour until the moment when he saw plaintiff was not going to yield him the right of way. Then, so he testified, he applied the brakes until he got the machine down to "half speed" at the time and place of the collision. The jury must have chosen not to believe Mr. Thompson's testimony on that point. But this much is clear — plaintiff never entertained the thought of yielding the right of way, his intention all along being to get across Nicollet avenue ahead of Thompson's car.
Plaintiff's case, all through, stresses reliance upon plaintiff's supposed right to assume that Mr. Thompson would have exercised *428
ordinary care to avoid a collision. The latter's negligence must be taken as established by the verdict. Plaintiff's supposed reliance upon Mr. Thompson's exercise of due care is of no moment for the simple reason that this is a case, if ever there can be one, where such reliance was itself negligence. We stress again the obvious truth of fact and law that it is not due care to depend upon the exercise of care by another when such dependence is itself accompanied by obvious danger. Heath v. Wolesky,
To attempt a review of the cases and a grouping of them on their respective sides of the line which lies between conduct which is and that which is not contributory negligence as a matter of law would be futile. This case presents these outstanding circumstances of its own. Plaintiff had a clear view of the approach of Thompson's car over a long distance; knew all the time that it was coming with great speed and did not observe any checking of its momentum. (The fact that the collision occurred as it did shows that when he entered Nicollet avenue Thompson's car was much closer than plaintiff admits.) This is not such a case as Duffey v. *429
Curtis,
No one can appreciate more than we the hardship of depriving plaintiff of his verdict and of all right to collect damages from defendant; but the rule of contributory negligence, through no fault of ours, remains in our law and gives us no alternative other than to hold that defendant is entitled to judgment notwithstanding the verdict. It would be hard to imagine a case more illustrative of the truth that in operation the rule of comparative negligence *430 would serve justice more faithfully than that of contributory negligence. We but blind our eyes to obvious reality to the extent that we ignore the fact that in many cases juries apply it in spite of us. But as long as the legislature refuses to substitute the rule of comparative for that of contributory negligence we have no option but to enforce the law in a proper case. We cannot escape the conclusion that this case compels its application.
The order must be reversed with directions to enter judgment for defendant notwithstanding the verdict.
So ordered.
Dissenting Opinion
The feature of this case relied upon to distinguish it from Duffey v. Curtis,
When plaintiff entered the intersection defendant was about 125 feet away. Plaintiff was then 37 feet from the east side of the intersection, for Nicollet avenue there is 37 feet from shoulder to shoulder. The "black top" surface on which Thompson was approaching is 27 feet wide. To reach the other side of the intersection and be clear of the "black top" surface, plaintiff had to travel the width of the westerly shoulder of Nicollet and the "black top" surface, a distance of about 32 feet. Thompson, 125 feet away, was driving at around 45 to 50 miles an hour. His speed was something more than twice that of plaintiff's, but he had to travel four times the distance that plaintiff would travel before he would intercept plaintiff's crossing. Thompson is said to have been traveling 73 1/2 feet a second; plaintiff was traveling 29 1/3 feet a second. *431
Figured closely, plaintiff would travel his 32 feet before Thompson could travel the 125 feet. The respective speeds and positions of the cars at that time indicated that plaintiff would cross safely if each continued at his then speed. Certainly, if Thompson slackened his speed, or if he slackened his speed and turned to the left, or if he came to a stop, plaintiff would encounter no danger. The possibility of danger depended upon what Thompson would do during the 125 feet that separated him from the intersection, and, more specifically, depended upon whether Thompson would decrease or increase his speed. Plaintiff, present at the intersection, had a right to assume that Thompson would exercise ordinary care, which in this case meant that Thompson would slacken his speed and allow for plaintiff's presence at the intersection. Primock v. Goldenberg,
"Defendant argues that plaintiff should not have driven directly in the path of the danger that must have been apparent to him. It cannot be said as a matter of law that any danger was apparent. Plaintiff was in the intersection first, was on his own side of the highway, and clearly had the right of way. He was justified in assuming that defendant would respect that right."
Mozes v. Borlaug,
The record presents no reason for depriving plaintiff of the rule of Guthrie v. Brown; Duffey v. Curtis; Montague v. Loose-Wiles Biscuit Co.; Ernst v. Union City Mission; Nye v. Bach; and Primock v. Goldenberg, supra, that whether or not plaintiff was negligent in assuming that Thompson would reduce his speed was a question for the jury. In my judgment, there should be an affirmance in this case.
Dissenting Opinion
I concur in the dissent of Mr. Justice Peterson.
MR. CHIEF JUSTICE GALLAGHER took no part in the consideration or decision of this case.
