Action to recover dаmages sustained by the plaintiff in his person and in his property in a collision between his auto and the auto of the defendant. There was a verdict for $6,500, which was conditionally reduced to $5,900, and the reduction accepted by the plaintiff. The defendant appеals from the order denying his alternatii'e motion for judgment notAvithstanding or a neAV trial.
On November 28, 1930, about half past five or six in the evening, the plаintiff Avas driving his Ford Tudor automobile northerly of St. Peter on state highway No. 5. It was dark. He ran into the rear of the defendant’s truck, which was parked at the side of the highway. The truck had come to a stop because it was out of gas. The defendant then parked it at the side of the highway as best he could and went to the rear, having in mind oncoming cars which might be endangered.
The plaintiff claims that there was no light оn the rear of the defendant’s truck and relies upon this as a basis of recovery. The fendant claims that he had a light, and, if not, that he wаs excuse able in having his car parked without one; and he further claims that the plaintiff’s contributory negligence prevents recovery.
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The uniform highway traffic act,
Section 2720-24 (a) forbids the parking or leaving standing of an auto upon the paved or main traveled portion of a highway when it is рracticable to park or leave such auto off the paved or traveled portion of the highway; and that in no event shall the auto be left upon a highway unless a clear width of not less than 15 feet opposite the auto shall be left for free pаssage. By subd. (c) this section is made not to apply to the driver of an auto which is disabled while on the paved or traveled portion of the highway to such extent that it is impossible to avoid stopping and temporarily leaving the auto in such position.
Section 2720-54 requirеs a parked car to have during the same period a light on the car. A violation of the statutes noted gives to the one for whоse protection it was enacted a cause of action if injury proximately results from its violation. The principle was discussеd in an early case, Bott v. Pratt,
The violation of the statutes cited may be excusable or justifiable, as, for instance, when an auto without fault of the driver skids to thе wrong side of the street. Chase v. Tingdale Bros.
The evidence sustains the finding of the jury that the defendant’s auto was parked on the highway without a rear light at a time when the statute says there should be one. The plaintiff sаys that if there had been a light he would have seen it and that he did not see it. He is positive in his testimony. The defendant is not certain. The most hе says is that his auto was serviced at Mankato, some ten miles south of St. Peter, after the usual custom. No one at the garage there gives compelling testimony to that effect. Against this testimony, which is negative, is the testimony of the plaintiff that there was no rear light and the fаct that in this short run the gasolene tank became empty. Besides, there is much credible testimony that at different times after the acсident the defendant admitted that he had no lights. The jury could find that there was not sufficient servicing and that there was no rear light.
The burden of prоving that the violation of the duty imposed by statute is excusable or justifiable is upon the party who violated it. Mechler v. McMahon,
The evidence does not require a finding that the plaintiff was guilty of contributory nеgligence in colliding with the parked car. His own lights were burning. There were several cars coming from the north, the lights of which dazzled him as he approached the defendant’s car. He says that he was blinded by them. The defendant says:
“Well, it was onty just a second before these two cars went by and he came up the highway and ran into the rear end of the truck on the extreme left corner of the truck. He triеd to make the turn *533 to keep from hitting it, but he didn’t see the truck soon enough, being blinded by the last car of these two cars that he met, he was blindеd by the first one of them and then blinded more by the second one, but he didn’t see the truck until he got right onto it. He tried to make the turn, but couldn’t get away fast enough.”
The defendant claims that the plaintiff was negligent in that he did not have headlights on his car so that he could see an object on the road such a distance ahead that he could’ stop and avoid injury. He relies upon Heiden v. Minneapolis St. Ry. Co.
The verdict was for $6,500. It was reduced to $5,900. It was not as a matter of law excessive. The plaintiff received a bаd injury to his knee. He was in the hospital for three months and on crutches or used a cane much longer. He suffered pain. He sustained a minor injury to his hand but sufficient to be considered in measuring damages. His injury will be permanent, and at times he may be subject to pain. His special damages were $1,500 or more. See Harrsch v. Breilien,
The court permitted the plaintiff to recover for lost time. There was no еrror in this. He had been in the business of a dry cleaner, but shortly before the accident leased or sold his business. He had earning capacity. The fact that he was out of employment when injured does not prevent recovery if he was capable of doing work оf which he was deprived by the accident. See Stenshoel v. G. N. Ry. Co.
Order affirmed.