No. 23,026 | Minn. | Nov 17, 1922
Action to recover damages to the plaintiff’s auto in a collision with an auto truck of the defendants. There was a verdict for the plaintiff. The defendants appeal from the order denying their alternative motion for judgment notwithstanding or a new trial.
Lyndale avenue in Minneapolis runs north and south. Grove-land avenue runs east and west and intersects Lyndale at right angles, but the northerly side of Groveland on the east is a few feet northerly of its northerly side on the west, and there is a like situation on the southerly side. At this intersection Hennepin avenue crosses going in a northeasterly and southwesterly direction, thus making at the intersection of the three streets a crossing of many corners, and concededly a dangerous one.
On December 29, 1920, the plaintiff was driving southerly on Lyndale. When he came to Hennepin a part of Lyndale was roped off by the city traffic department and he was obliged to go south on Hennepin and then turn east, or to his left, and pass into Lyndale, The truck of the defendants was approaching on Hennepin from the southwest on a down grade. The truck of the defendants had the right of way. Laws 1917, p. 164, c. 119, § 22; Armstrong v. Minneapolis, A. & C. R. Ry. Co. supra, page 376; Soderberg v. Taney, 152 Minn. 376, 188 N.W. 993" court="Minn." date_filed="1922-06-16" href="https://app.midpage.ai/document/soderberg-v-taney-7980714?utm_source=webapp" opinion_id="7980714">188 N. W. 993. This, however, did not necessarily make it negligence in one not having the right of way to attempt to take the crossing first. If it were so he must needs wait the passing of all cars approaching on his right. Drivers at crossings must give and take but with a sensible recognition of the law that gives the right of way to the one approaching from the right. The cases were recently reviewed in Soderberg v. Taney, 152 Minn. 376, 188 N.W. 993" court="Minn." date_filed="1922-06-16" href="https://app.midpage.ai/document/soderberg-v-taney-7980714?utm_source=webapp" opinion_id="7980714">188 N. W. 993, and do not call for renewed discussion. The street was slippery, the truck of the defendants was coming on a down grade, at a fairly good speed, it skidded, was going “zigzag,” and the driver lost control of it. The plaintiff says it was 150 to 175 feet away when he started to cross. Under these circumstances, conceding that a finding that plaintiff was negligent would be well sustained by the evidence, the law does not require such conclusion from the evidence.
That the jury might find that the driver of the defendants was negligent does not admit of serious dispute.
The argument is made though not greatly .urged that it is not shown that the driver of the defendants’ auto was acting within the scope of his employment. The evidence is sufficient, and that is all we need determine. The defendants did business under the name of “Northwestern Oldsmobile Company.” The truck involved had printed on it the words “Oldsmobile Service.” It was owned by the defendants. They employed the driver. He had taken the truck with their permission. There was evidence that, though rightfully out with the car, he had no specific business on Hennepin at the time. He had gone to a paint shop on Lyndale, apparently to get some articles for his employers, and they not being ready he drove down Hennepin with no particular purpose except to use his time until such articles were ready for delivery. The cases have been recently considered. Behrens v. Hawkeye Oil Co. 151 Minn. 478" court="Minn." date_filed="1922-03-31" href="https://app.midpage.ai/document/behrens-v-hawkeye-oil-co-7980593?utm_source=webapp" opinion_id="7980593">151 Minn. 478, 187 N. W. 605; Piepho v. M. Sigbert-Awes Co. 152 Minn. 315, 188 N. W. 998; Stoneman v. Smyth, supra, page 334. The evidence sustains a finding that he was in the line of his employment.
Order affirmed.