Hubenette v. Ostby

• Decision Date: 04 December 1942
• Docket Number: 33271.
• Citation: 6 N.W.2d 637,213 Minn. 349
• Parties: HUBENETTE v. OSTBY et al.
• Court: Minnesota Supreme Court

6 N.W.2d 637

213 Minn. 349

HUBENETTE v. OSTBY et al.

No. 33271.

Supreme Court of Minnesota

December 4, 1942

Syllabus by the Court.

Whether defendant's driving, in spite of plaintiff's cautionary remarks, required that plaintiff guest take other steps in the interest of his own safety should have been submitted to the jury.

Snyder Gale & Richards, of Minneapolis, for appellant.

Peter E. Kamuchey, of St. Paul, for respondents.

GALLAGHER Chief Justice.

Two causes of action, one by plaintiff in his own behalf and one in behalf of his minor son, Merlin, for damages arising out of a collision between an automobile owned and operated by defendant Ostby and one owned and operated by defendant Myhres, resulted in verdicts for plaintiffs. Myhres interposed answers but thereafter made no appearance personally or by counsel. Ostby, to whom we shall hereinafter refer as defendant, appeals from an order denying his alternative motion for judgment or a new trial in the action here involved. There is no appeal in the son's case.

The collision occurred at about 6:30 in the evening of October 28, 1941, on trunk highway No. 212 at a point about seven miles east of Norwood, Minnesota. No. 212 is a paved, through highway. The parties live in St. Paul and are friends of long standing. Plaintiff is a member of the city police force, and defendant is a traveling freight agent for the Soo Line railroad. On the morning of October 28, 1941, defendant invited plaintiff and Merlin to accompany him on a trip to New Ulm. After defendant transacted his business at New Ulm they drove to a place in the vicinity of Sleepy Eye, where they hunted pheasants during the afternoon. They started for St. Paul about 4 p.m. and arrived at Norwood at 6 o'clock. After having refreshments, the parties resumed their trip. They had proceeded approximately seven miles when the De Soto automobile in which they were riding collided with the Myhres car then traveling north on a side road which intersects with No. 212. The undisputed testimony shows that the Myhres car failed to stop before entering the through highway. Appellant does not assert error in the jury's finding of his own negligence.

The only questions presented on the appeal are whether the trial court erred in failing to submit to the jury the question of plaintiff's contributory negligence and assumption of risk and whether the damages awarded are excessive. Defendant did not plead or request an instruction on assumption of risk. However, what some cases call 'assumption of risk' (Markovich v. Schlafke, 230 Wis. 639, 284 N.W. 516) other cases deal with under the term 'contributory negligence.' Gudbrandsen v. Pelto, 199 Minn. 220, 271 N.W. 465; Thorstad v. Doyle, 199 Minn. 543, 273 N.W. 255. In some cases the expressions are used interchangeably. Wright v. City of St. Cloud, 54 Minn. 94, 55 N.W. 819; Herdman v Zwart, 167 Iowa, 500, 149 N.W. 631. The distinction between the two defenses was important in master and servant cases at common law, although even then the cases were in confusion as to what that distinction was. See Rase v. Minneapolis, St. P. & S. S. M. Ry. Co., 107 Minn. 260, 120 N.W. 360, 21 L.R.A.,N.S., 138.

In the ordinary personal injury action, where plaintiff puts himself in a position to encounter known hazards which the ordinarily prudent person would not do, he assumes the risk of injury therefrom. Such assumption of risk is but a phase of contributory negligence and is properly included within the scope of that term. Mosheuvel v. District of Columbia, 191 U.S. 247, 257, 24 S.Ct. 57, 48 L.Ed. 170; Houston, E. & W. T. Ry. Co. v. McHale, 47 Tex.Civ.App. 360, 105 S.W. 1149; Restatement, Torts, § 466, comments c, d; Prosser, Torts, § 51, p. 379.

Contributory negligence was pleaded as a defense, and, while it does not appear that a specific request for an instruction thereon was made, defendant's counsel called to the attention of the trial court its failure to charge thereon and elicited from the court the suggestion that such failure was 'deliberate.' That presents the question whether the testimony was such that defendant was entitled to an instruction on contributory negligence.

Merlin testified that defendant drove between 75 and 80 miles and hour most of the time on the trip here involved and that he was driving about 75 miles an hour at the time of the collision; that as he passed cars on the straightaway defendant on a few occasions said, 'Watch me make that car go backwards' and that 'he would zoom right past it'; that on one occasion they went around a curve at 65; that defendant hardly ever traveled less than 70 except through towns. He also testified that his father spoke to defendant several times about the speed at which he was traveling and that defendant on at least one occasion replied: 'This is nothing for this car,' and on another that 'he was afraid to open it up.' Merlin also testified that he himself spoke to defendant...