208 N.W. 182 | Minn. | 1926
Lead Opinion
1. Though the damages awarded are inadequate the plaintiff cannot prevail upon his appeal if the record presents no right of recovery; that is, if his own negligence contributed to the injury or if the defendants were not negligent. Young v. G.N. Ry. Co.
The trial court held that the questions of negligence were for the jury.
2. About midnight of November 6, 1924, the plaintiff went with a wrecking car to the assistance of an automobile which had gone off the northerly side of the highway some ten miles beyond Duluth toward Two Harbors. He was unable to get the car back on the highway by working from the north side. He placed his wrecking car on the southerly side and chained the front end to a telephone pole. He then stretched a chain across the road, and attached it to the car off the highway, and by use of the windlass was working it back onto the grade. The defendants came with their car from Duluth, going to Two Harbors, and ran into the chain, tipping over the wrecking car, and injuring the plaintiff.
It is the claim of the defendants that the plaintiff was negligent in extending the chain across the highway. In assisting the wrecked auto the plaintiff was not making an improper use of the highway. He was not a trespasser. Fischer v. McGrath,
"In view of all the circumstances as disclosed by the evidence, the court is of the opinion that the question of plaintiff's *428 contributory negligence was properly left to the jury. The plaintiff was not a trespasser in occupying the highway for a limited time for the purpose of rescuing the car which accidentally went off the road into the ditch. In so using the highway the plaintiff was bound to exercise ordinary care for the safety of others traveling upon or using it, and to not unnecessarily obstruct the highway. * * *
"Questions as to the extent to which plaintiff was making use of the highway, the necessity therefor, whether in using the highway he was exercising ordinary care for the safety of others, were necessarily issues of fact for the jury, unless the evidence was conclusive that the plaintiff was negligent. There was some dispute in the testimony as to the sufficiency of the precautions taken by plaintiff or others for warning approaching travelers of the obstruction in the road. Then the time when plaintiff was obstructing the road, the same being in the early hours of the morning, had a bearing upon the reasonableness of the care taken and precautions provided.
"Viewing the situation after the accident, as described by the witnesses, it is easy to suggest added precautions which the plaintiff might have taken for his own safety and for the safety of others, but the plaintiff's conduct is to be determined as of the time of the accident and whether he used ordinary care depends upon what was done or not done at that time."
3. It was the duty of the defendants to exercise ordinary care in driving their auto on the highway, both in keeping a lookout for people who might be endangered by them, and in having it under reasonable control. This is only a statement of the law made time and time again. The jury was justified in finding them negligent.
4. The verdict was for $1,812. The special damages for hospital attention, physician's services and lost time amounted to $1,671.44. This leaves $140.56 as compensation for pain and suffering and bodily injury.
The plaintiff was 27 years old. His collar bone was torn loose, his arm partially dislocated, ligaments around the shoulder were torn, and the scapula of the left shoulder was fractured. His eyesight is much impaired and he claims that some of his other *429 injuries still persist. He was in the hospital about 9 weeks, and during a considerable portion of the time suffered intense pain.
The sum of $140.56 is inadequate compensation. An award for pain and suffering, and for disability consequent upon an injury to the person, is largely within the discretion of the jury. It is more difficult to say that a verdict is inadequate, in an action such as this, than in one where the damages are susceptible of either accurate measurement, or of something approaching a very close estimate. And we appreciate the better position of the trial court for determining the propriety of an award. Ott v. Tri-State Co.
Order reversed.
Dissenting Opinion
I dissent. To my mind, the stretching of a steel cable across a much traveled highway, in the night time, during a snowstorm, without adequate danger signals, in these times of automobile traffic by night, is negligence per se. *430
