243 Minn. 91 | Minn. | 1954
Action is brought by plaintiff to recover damages for personal injuries and property damage he sustained as the result of an intersection collision between his automobile and an automobile driven by defendant Donna M. Anderson and owned by defendant Melvin R. Anderson, her husband. In response to appropriate special findings
The accident in question occurred at 12:23 p. m. on April 7, 1953, at the intersection of Beech and Atlantic streets in the city of St. Paul. Beech street runs east and west and Atlantic street runs north and south at their juncture. Observation of eastbound traffic on Beech street is restricted if a person is proceeding south on Atlantic street toward the intersection because of the estimated 25-percent upgrade of Atlantic street and the location of a house on a lot with a high embankment upon the northwest comer of the intersection. Plaintiff, who was proceeding south on Atlantic street at the time of the accident, testified that he had to approach to within 15 to 16 feet of the intersection before having a clear view of traffic on Beech street to the west. Likewise, a person proceeding east on Beech street has his line of sight broken by the grade, house, and high lot when attempting to observe southbound traffic on Atlantic street. On the day of the accident the intersection was dry. There is a conflict in the testimony as to the presence of loose sand on the roadway.
Prior to the accident plaintiff was proceeding south on Atlantic street at 15 to 20 miles per hour in his 1939 Plymouth sedan. As he neared the intersection he slowed down to between 12 and 15 miles per hour until within approximately 15 to 16 feet of the intersection where he could view Beech street without obstruction. Plaintiff observed that no traffic was coming from the east but he saw defendants’ vehicle, a 1948 Chevrolet sedan, approximately 210 feet to his
Defendants contend that plaintiff was guilty of contributory negligence as a matter of law. They argue that plaintiff was negligent in entering the intersection while admittedly unable to judge the speed of an approaching automobile 210 feet away. Through analogy to Rosenau v. Peterson, 147 Minn. 95, 179 N. W. 647, where it was held to be contributory negligence as a matter of law for plaintiff’s driver to enter an intersection while her view of traffic was totally obstructed, and Chandler v. Buchanan, 173 Minn. 31, 216 N. W. 254, and DeHaan v. Wolff, 178 Minn. 426, 227 N. W. 350, where it was held to be contributory negligence as a matter of law for the plaintiffs to enter intersections after looking but failing to see the defendants, defendants assert in their brief that plaintiff acted without “caution either for his own safety or that of others.”
As stated by this court in Guthrie v. Brown, 192 Minn. 434, 436, 256 N. W. 898, 899:
“It is only in the clearest cases, where the facts are undisputed, and it is plain that all reasonable men can draw but one conclusion*94 from them that the question of contributory negligence becomes one of law.”
Plaintiff’s testimony establishes that he made his decision to proceed when only 15 to 16 feet from the intersection and after observing defendants’ automobile approaching at a distance of about 210 feet. At the time of his decision plaintiff was operating his vehicle at a controlled rate of speed, 12 to 15 miles per hour, and he had a clear view of all traffic on Beech street. Although defendants’ automobile was approaching from plaintiff’s right, plaintiff, being initially in the intersection, had a right to assume, until it appeared otherwise, that the driver of the approaching automobile would seasonably yield the right of way in accordance with M. S. A. 169.20, subd. 1, which provides:
“The driver of a vehicle approaching an intersection shall yield the right of way to a vehicle which has entered the intersection from a different highway.”
A finding of contributory negligence is not compelled by the fact that plaintiff proceeded into the intersection while admittedly unable to estimate the speed of defendant’s car. When entering the intersection and until he reasonably should have perceived otherwise, plaintiff was entitled to assume that defendants’ vehicle would be driven at a lawful rate of speed and under sufficient control to permit it to stop for crossing traffic.
“* * * There was but a fleeting moment left for plaintiff, as an ordinarily prudent person, to determine the wisest course to follow. A person’s conduct in a moment of peril is not to be measured by the same standard of exactness as that gained from the wisdom of hindsight after the accident.”
Finally, the cases relied upon by defendants are clearly distinguishable upon their facts. In the instant case plaintiff’s conclusion that he had sufficient time to clear the intersection was based upon clear observation of the situation. He did not proceed blindly into an intersection as in Rosenau v. Peterson, supra, or look. and fail to see an oncoming automobile as in Chandler v. Buchanan, supra, and DeHaan v. Wolff, supra.
Defendants also contend that the award of $400 to plaintiff for the personal injuries he sustained is excessive and the product of passion and prejudice on the part of the jury. The extent of plaintiff’s injuries was a bruise which caused discoloration of a two-inch strip extending from the right collarbone down to the nipple line of the chest wall with attendant tenderness of the outer aspect of the right shoulder area. Although no permanent disability exists, the tenderness resulted in severe pain for approximately six months whenever the right arm was moved. Also the pain interfered with plaintiff’s sleep. Whenever he lifted cases or used his right arm to a great extent, he still had pain at the time of trial. In addition plaintiff complained of dizziness immediately following the accident although this condition did not persist. While an award of $400 may be liberal for the injuries plaintiff sustained, we cannot say on the basis of plaintiff’s subjective complaints and his doctor’s testimony that it is so excessive as to permit this, court to disturb it. Furthermore, there is nothing in the record which could have aroused passion or prejudice on the part of the jury.
Judgment affirmed.
Guthrie v. Brown, 192 Minn. 434, 256 N. W. 898; Reynolds v. Goetze, 192 Minn. 37, 255 N. W. 249; Fulweiler v. Twin City Motor Bus Co. 184 Minn. 519, 239 N. W. 609; Klare v. Peterson, 161 Minn. 16, 200 N. W. 817; Soderberg v. Taney, 152 Minn. 376, 188 N. W. 993.