224 N.W. 256 | Minn. | 1929
Lead Opinion
Plaintiff drove his car northerly on an 18-foot paved highway. Defendant drove his car southerly thereon. They were in plain view of each other. It was daytime. There was a collision. The testimony is conflicting.
The motion for judgment non obstante admits the credibility of the adverse party and every inference which may fairly be drawn from such evidence. That view of the evidence most favorable to the adversary must be accepted. Manos v. St. Paul City Ry. Co.
Defendant was driving about 35 miles per hour, and plaintiff 15 to 20. Neither slackened speed. They were conscious of each other's presence. Defendant's left wheels were about four feet from the east edge of the pavement. Plaintiff expected defendant to seasonably yield the right of way. He had a right to assume that defendant would do so. Bradley v. Minneapolis St. Ry. Co.
The last 200 feet of distance between these two approaching cars faded away in less than three seconds. The elements of contributory negligence are stated in Eichhorn v. Lundin,
Our conclusion is that the questions of negligence and contributory negligence were for the jury, and that under rules stated in Manos v. St. Paul City Ry. Co.
Reversed.
Dissenting Opinion
I think that plaintiff was guilty of contributory negligence as a matter of law and that judgment non obstante was properly ordered. Plaintiff testified that he first saw defendant's car several hundred feet away and that it was coming on the east side of the pavement; that until they were 100 feet apart he himself was driving in the center of the pavement; that for the last 100 feet he was on the east side thereof. He testified that when he saw the defendant's car coming as it did he thought there was going to be an accident; that he could have stopped in 15 or 20 feet; that he was going between 15 and 20 miles an hour and kept right on at that speed and was so traveling when the cars came together. Plaintiff's witness Jacobson, who was riding with him, testified to the same effect. Plaintiff put his right wheels only two inches over on the shoulder, which was five or six feet wide. By the slightest additional effort, only taking a small fraction of a second, he could have avoided the collision. Had he turned his car even six inches farther out on the shoulder where there was ample room, there would have been no collision; or if he had stopped his car or had he slackened his speed the accident would not have happened. An automobile driver, though in the right, who, knowing of an impending danger due to the negligence of another and knowing that an accident will happen unless he takes a manifest and proper precaution, which is easily available, is guilty of contributory negligence. Brown v. M. St. P. Ry. Co. 22 165; Kelly v. St. P. M. M. Co.