6 N.W.2d 637 | Minn. | 1942
The collision occurred at about 6:30 in the evening of October 28, 1941, on trunk highway No. 212 at a point about seven miles *350 east of Norwood, Minnesota. No. 212 is a paved, through highway. The parties live in St. Paul and are friends of long standing. Plaintiff is a member of the city police force, and defendant is a traveling freight agent for the Soo Line railroad. On the morning of October 28, 1941, defendant invited plaintiff and Merlin to accompany him on a trip to New Ulm. After defendant transacted his business at New Ulm, they drove to a place in the vicinity of Sleepy Eye, where they hunted pheasants during the afternoon. They started for St. Paul about four p. m. and arrived at Norwood at six o'clock. After having refreshments, the parties resumed their trip. They had proceeded approximately seven miles when the De Soto automobile in which they were riding collided with the Myhres car then traveling north on a side road which intersects with No. 212. The undisputed testimony shows that the Myhres car failed to stop before entering the through highway. Appellant does not assert error in the jury's finding of his own negligence.
The only questions presented on the appeal are whether the trial court erred in failing to submit to the jury the question of plaintiff's contributory negligence and assumption of risk and whether the damages awarded are excessive. Defendant did not plead or request an instruction on assumption of risk. However, what some cases call "assumption of risk" (Markovich v. Schlafke,
In the ordinary personal injury action, where plaintiff puts himself in a position to encounter known hazards which the ordinarily *351
prudent person would not do, he assumes the risk of injury therefrom. Such assumption of risk is but a phase of contributory negligence and is properly included within the scope of that term. Mosheuvel v. District of Columbia,
Contributory negligence was pleaded as a defense, and, while it does not appear that a specific request for an instruction thereon was made, defendant's counsel called to the attention of the trial court its failure to charge thereon and elicited from the court the suggestion that such failure was "deliberate." That presents the question whether the testimony was such that defendant was entitled to an instruction on contributory negligence.
Merlin testified that defendant drove between 75 and 80 miles an hour most of the time on the trip here involved and that he was driving about 75 miles an hour at the time of the collision; that as he passed cars on the straightaway defendant on a few occasions said, "Watch me make that car go backwards" and that "he would zoom right past it"; that on one occasion they went around a curve at 65; that defendant hardly ever traveled less than 70 except through towns. He also testified that his father spoke to defendant several times about the speed at which he was traveling and that defendant on at least one occasion replied: "This is nothing for this car," and on another that "he was afraid to open it up." Merlin also testified that he himself spoke to defendant several times about the speed.
Plaintiff testified that defendant drove between 75 and 80 miles an hour much of the time on the trip; that he cautioned him several times and that after being cautioned on one occasion defendant said, "The car can go easily 80 miles, that is nothing for this car." Plaintiff also heard defendant say as he overtook and passed another car, "Watch me make that car go backwards." Asked on cross-examination as to whether, knowing the speed at which defendant was traveling, he was satisfied to stay in the *352 car and take his chances, plaintiff answered, "Certainly, I had to"; and at another time, in answer to the question, "You preferred to take your chances?" he testified, "Yes, I had to." Plaintiff sat in the front seat with defendant on the way to New Ulm, and the son occupied that seat on the return trip, so they each had a good opportunity to observe the speedometer and know the speed at which the car was traveling.
Plaintiff did not see the Myhres car approaching from the south and did not warn defendant of its approach. However, no negligence can be predicated upon this failure, because defendant testified that he himself saw the lights of the Myhres car. Merlin also testified that he called defendant's attention to them.
It is the duty of a passenger or guest in an automobile to exercise ordinary care for his own safety. He must do the things to assure his safety that an ordinarily prudent person would do under the same or like circumstances. Jones v. Schreiber,
In the case at bar, defendant had, during the day, persistently driven at speeds which Minn. St. 1941, §§
The order appealed from is reversed and a new trial granted.