Rosenau v. Peterson, 179 N.W. 647

Rosenau v. Peterson

179 N.W. 647

Minn.

1920

Check Treatment

BROWN, C. J.

Thеre was a collision at a highway intersection between an automobile owned by plaintiff and one owned and operаted by defendant, and, on the claim that defendant negligently caused the same, plaintiff brought this action to recover for the dаmage thereby caused to his automobile. Defendant interposed a counterclaim ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍for damages to his automobile, bаsed on allegations that the collision was caused by the negligence of the driver of plaintiff’s car. The trial court dismissed the counterclaim, but submitted plaintiff’s cause of action to the jury. Plaintiff had a verdict and defendant appealed from an ordеr denying a new trial.

The assignments of error present several questions, only two of which require special attention, namely: (1) Whethеr the driver of plaintiff’s car was guilty of contributory negligence as a matter of law; and (2) whether defendant was guilty of such negligencе as ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍will preclude his right of recovery on the counterclaim. Neither question requires extended discussion.' The case is one, in our view of the evidence, in which the negligence of both parties is of such a character as to preclude a right of rеcovery by either.

1. The highways at the point in question intersect and cross at right angles. Plaintiff’s automobile was being driven by his sister and she was in sole control and possession thereof. She was driving west on the highway extending east and west. Defendant was driving his own automobile, and wаs proceeding south on the highway running north and south. The crossing is a dangerous one, of which both parties were fully informed. The view of the driver of plaintiff’s car to the north, as she approached .the crossing, was obstructed for a considerable distance by a grove of trees and brush immediately ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍adjoining the highway line/and the same obstruction prevented a view of the road to the east as defendant came on from the north. That condition continued until plaintiff’s car passed the line of the north and south road, and until defendant passed the line of the east and west road. Both automobiles reached the crossing at about the samе time; the collision occurred in the center of the road. Defendant was approaching from the right of the driver of plaintiff’s car and under chapter 119, section 22, p. 164, Laws 1917, had the right of way, a right plaintiff was bound to respect.

That the driver of plaintiff’s car was ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍guilty of negligence contributing *97to if not the real canse of the collision seems clear. She was approaching a dangerous crossing, the view to the north was obstructed, and she was thereby prevented from observing the approach of аutomobiles or other vehicles from that direction. She was charged with notice that the law gave those approaсhing from that direction prior right of passing, and it was her duty to have her automobile in such control as to be in position to cheсk it and prevent just such a collision as here occurred. She was unable to do so and ran directly into defendant’s car at thе intersection of the traveled part of the road. She may at the last moment have attempted to turn to the left in order to avoid the collision, shown by the fact that her machine was brushed aside by the force of the impact, but she was unable to prеvent the accident. She did not know of the statute giving the prior right of passage to defendant. But that is no excuse, the ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍law of the road must be respected and upheld and ignorance thereof will furnish no defense for its violation. And again the situation of the crossing, the view to the north being wholly obstructed, was such as to require the driver of an automobile, in approaching the same, to hаve his car under such control and he in a position to avoid a collision with approaching vehicles, without regard to thе question of the statutory priority of right of way. Any other rule would open the door to a continuation of extreme recklessness in automobile driving, which of late has taken such heavy tolls in deaths and injuries as to cause serious alarm -to those who by forcе of circumstances are compelled to be out and upon our public streets and highways. No tender mercy can be extended to those who carelessly fail in their duty to have in mind the rights of others so situated. The conclusion of negligence on the part of plaintiff is clear.

2. Defendant was fully aware of the character of this crossing; he lived in the community. Although on this occаsion he had the technical legal right of way over the crossing, he was under obligation to exercise the right with due regard to the sаfety of others, and to so approach the crossing as to enable him to avoid unexpected danger to those approaching from the intersecting road. The rule of the statute is one of convenience and was intended to standardizе rights and duties at intersecting highways; it does not absolve one having the prior right from independent acts of negligence at such crоssings. In this case the evidence makes-it clear that defendant did not meet the obligations imposed upon him by *98the situation with which he wаs confronted, in fact, the verdict of the jury against him necessarily is predicated on a finding to that effect. Conditions surrounding and immediately following the collision, make it reasonably certain that' he approached and passed oyer the crossing at a high and dangerous speed. His machine, though struck squarely on the side, was not thrown off the road nor stopped. The speed оf his ear was of sufficient force and power to brush plaintiff’s car aside and to proceed on down the road a considerable distance before coming to a stop. We think on the evidence that he clearly was chargeable with negligеnce, contributing to the accident, even though he had the technical right of way, and should not be awarded compensatiоn for injuries resulting to his automobile.

While the court below dismissed the counterclaim before trial, and the issues thereby presented wеre not sent to the jury, the evidence clearly negatives his right to recover thereon, and it would be useless to remand the cаuse for a trial on that branch of the case. This renders unnecessary a consideration of the question whether plaintiff is responsible for the negligence of his sister in the operation of the automobile under the “family automobile doctrine,” as stated and applied in Kayser v. Van Nest, 125 Minn. 277, 146 N. W. 1091, 51 L.R.A.(N.S.) 970, and similar cases.

Order reversed.