*1 SYLVESTER RUTZ v. SAM IACONO.1 30, 1949.
Dеcember 34,944. No. Freemam, Zima, Jr., and Frank J. for appellant. H.
William & John A. Bosenmeier, Faegre Benson, McFachron, and Gordon Jr., respondent. Chief Justice.
Loring, of personal injuries arising involves out an automo- This action plaintiff accident in which was the and defendant the bile in favor of defendant. appeals driver. There was a verdict Plaintiff denying from an order a motion the alternative for an order granting damages only a new trial on the issue or for an order on all granting plaintiff a new trial issues. appeal, plaintiff presents questions
On (1) decision: Was guilty negligenсe defendant as a matter of (2) law? Was plaintiff from contributory negligence free as a matter of questions law? The
1 Reported in 40 892. N. W. negligence both were submitted to defendant If questions еither of the here is answered in the presented If affirmative, there must a new trial. both are answered in the be the new trial affirmative, damages only. should be the issue of If questions both are answered there must be an negative, *2 affirmance. plaintiff, Sylvester Rutz, aged 25,
June and Sam from Iacono, defendant, aged Minneapolis drove to Min Avon, in 1916 Ford convertible automobile to attend a nesota, Iacono’s in wedding. thеy parents noon After lunch decided to visit Rutz’s Flensburg, a town about 25 miles north of Avon. Iacono drove while Rutz gave directions as to the route. About the middle of the after noon, they sunny started back to Avon over the same road. It was a they put and had the down. day, top spot At about miles south of Flensburg quarter and a of a mile north of the car struck Bowlus, a washout in a half-mile stretch of new construction. Both men were thrown out, plaintiff injured. and Plaintiff had been riding with defendant day. most the There was no contention that defendant had not driven his convertible Ford with discretion until shortly befоre the accident. The road on they which drove, going south from Flensburg to Bowlus, was a well-graded gravel road which had been traveled for years, some except that near Bowlus therе was half a mile of new Along construction. the outside edges of new construction there were which washouts had been caused heavy shortly rains before the accident. The road wаs about 30 feet wide. The new construction had completed been about two weeks before the Some of the washouts accident. extended as much as four edges feet from thе outside the road. Nevertheless, there was pass abundant room two cars to meet and between the washouts, which to plainly drivers, were visible there no being vegetation on recеntly grade. the constructed While the older road was well com and free from dirt pacted gravel, loose or it had become corrugated commonly into what is known as a washboard surface. On the new construction, however, except washouts, the the surface of the roadway although there was loose and smooth, some dirt sand occurred. accident thе this new construction that on it. It was defendant to whether parties the as dispute There is between to reach- prior mile or so road washboard car on the up his speeded bouncing of consequent the whether ing new construction the if may be, However that speed. the protest to car led reaching speed before reduced his protest, was a defendаnt there miles from 10 50 or 65 to traveling thereon at and was grade new nearby defendant, or a plaintiff, on whether hour, depending per and whether there may as it be believed. Be that witness is to defendant, dispute is no plaintiff, from there another his car had a found that construction, new upon reaching the he was speed at the in the loose dirt sand tendency to swerve guided defеndant it toward swerving left, to the going. After to avoid expected he where, apparently, portion grade, right complete control that he He testified the loose material. he right edge, Along this right.
car after he turned it toward which washout, he drove into 300 feet before traveled about it overturned and threw violently car bounce so caused the ditch. There was evidence car rolled over both men out. The *3 There that rolled over three times. from which could be inferred it it of the washout into evidence as to the size dispute is some the he car аnd which defendant testified did which defendant drove the that the wash- see until car struck it. There is some evidence the wide, deep. two feet and a foot There is other long, out was four feet testimony projected only graded surface, that it feet into the was wide, only eight deep. Perhaps, six to inches and four to six inches speaks convincingly did to the car more about thе size of the what it is no evidence or testimony. There contention than does the oral pit view of the washout. There is to the any obstruction there was A of the smallest described contrаry. pit size, testimony to the direct vegetation, obviously large and unconcealed evidence in the in time to avoid reasonably it, alert driver to see no any enough per hour; slight 10 50 or 65 milеs a going whether he matter pit. the would have avoided Defendant steering wheel turn he the wash- about 300 feet before struck middle of the road left the 594
out. record, negligent On this we concludе defendant was must a light as matter of law in car such driving convertible a road without keeping a lookout for the plainly dangerous visible washout. The jury should have been so instructed.
We considеr
justified
next whether
court was
submit
ting
question
of plaintiff’s contributory negligence
to the
This court has defined the
required
measure
care
guest
of a
In
passenger.
Burgess
Crafts,
v.
“* * # a. guest required course is of or- exercise dinary care for own safety, his but that does not mean that he has to assume responsibility management car. This court has upon occasion defined the duties of guest and laid down the rule that he required is not constantly to be on the alert to discover dangers which the driver may perchance not discover. When he is riding with an apparently competent driver duty requires his him to warn the driver of danger which he has become aware of and which he has reason to believe the driver has overlooked or is not aware of.”
Wicker v. Const. Cо. Inc. 183 Minn. North States N. W. 630; 206 Minn. 289 N. Goldberg Cook, 512; v. W. Kordiak v. Holm- gren, 225 Minn. 30 N. W. 16.
In bar, plaintiff the case at riding been with defendant most day. above, As stated there was testimony that on two occa- shortly sions before the аccident he had protested against defend- driving. ant’s fast Defendant denies that he received such protests; any rate, at he drove the stretch of new road at a speed which сaused his to swerve in dirt in car the loose the middle of roadway. It was here that testified again that he cautioned defendant speed. about Defendant denies and contends that he going no more per than miles hour. He therefore swung to right to avoid the dirt or gravel, loose and with his car, as he *4 under says, control complete drove into the washout which, he testi- he did not sеe. fied, Obviously, any speed at by testified to any wit-
595 wash- from the away matter to veer simple have been it would ness visibility was clear day was upset. The and thus avoid out no reason to he had the washout, seen Even good. warning would have until a did not see it that defendant believe at the looking was not However, he, apparently been too late. too, As a the washout. road, is no evidence that he saw because there keep him to a look- require did guest passenger, ordinary care not or he became aware out to warn the driver of obstructions unless of them. them and also aware that driver was unaware guest pas- relates to negligence as it contributory law of The only find the facts not able to from must be jury is that the sengers dangеr and aware aware of the the guest warning also that it, to but driver was oblivious 179, Minn. 188 Ahasay, Jacobsen v. accident. have averted the might 271 N. W. Brittenham, 199 Minn. Findley v. 670; 216 N. W. Minn. N. W. 331,19 Co. 220 v. Union Transfer 119; Shockman (2d) 685. In the case 225 Minn. 30 N. W. 812; Kapla v. Lehti, rather than ex- lookout, bar, keep it was defendant’s failure to at Con- cause the accident. speed, proximate cessive that was the negligence should not been submitted to the tributory have reversed, is and a new trial is ordered from appealed The order damages only. question on the Appeal of Costs. Taxation Clerk’s from
On filed: following oрinion 1950, the February 10, On Curiam. Per upon thereof served filed and notice case opinion
The Supreme 1919. Under December the appeal to parties both Minn, disbursements shall be costs аnd xxxvii), (222 XY Court Bule days’ by notice the clerk by first instance taxed in the shall be within and such taxation opponent, his taxing party of the decision. filing days after taxed the appellant, who costs were bar, case at
In the days after filing more than January 23,1950, until prevailed, under losing party, XVI, Rule situation, In that decision. *5 to have judgment entitled entered inserting any without therein for costs and allowanсe disbursements. may .The prevailing party have been misled an impression filing petition of a stayed rehearing the taxation costs as entry well as the of judg- Minn, ment. It does not do so Eule XX (222 under xxxviii), which specifically states filing that the of such petition does stay taxation of costs. Consequently, the taxation of costs by clerk must be vacated and the judgment favor appellant entered without an allowance for costs and disbursements.
It is so ordered.