Aanenson v. Engelson, 38839

• Decision Date: 01 November 1963
• Docket Number: No. 38839,38839
• Citation: 267 Minn. 1,124 N.W.2d 360
• Parties: Russell AANENSON et al., Appellants, v. Norman ENGELSON and Ray Engelson, d.b.a. Engelson Truck Service Company, Respondents.
• Court: Minnesota Supreme Court

Page 360

124 N.W.2d 360

267 Minn. 1

Russell AANENSON et al., Appellants, v. Norman ENGELSON and Ray Engelson, d.b.a. Engelson Truck

Service Company, Respondents.

No. 38839.

Supreme Court of Minnesota.

Nov. 1, 1963.

Syllabus by the Court.

1--2. Whether or not a collision in which a truck collided with the rear of an automobile was caused by the concurrent negligence of a truckdriver, upon a claim that he negligently operated the truck with known defective brakes and was otherwise negligent, and the negligence of the automobile driver, upon the claim that she violated Minn.St. 169.15, the slow-speed statute, and was otherwise negligent, was for the jury and the evidence supports its findings.

3. Section 169.15, the slow-speed statute, was intended to apply whenever a driver proceeds at a speed slower than permitted and which, under the circumstances, is not reasonably necessary for safe operation and results in impeding the normal and reasonable movement of other vehicles upon the highway. When, in accordance with a party's claim or defense, sufficient evidence is introduced to support a finding that the statute was violated, it should be included in the charge to the jury--usually with such qualifying or cautionary instructions as the circumstances may require.

Mott, Grose & Von Holtum, Worthington, Mort B. Skewes, Luverne, for appellants.

Carroll, Cronan, Roth & Austin and Robert Austin, Minneapolis, for respondents.

ROGOSHESKE, Justice.

This appeal arises out of a motor vehicle accident in which a truck collided with the left rear of an automobile causing personal injury to plaintiff Florence Aanenson. Her husband joined in bringing this action for damages. After a verdict for defendants, plaintiffs appeal from an order denying their motion for a new trial limited to damages only or in the alternative for a new trial on all issues.

Three questions are presented for review, namely, whether defendants should have been held liable as a matter of law, whether the issue of contributory negligence should have been submitted to the jury, and whether there was error in the instructions to the jury.

The collision occurred at about 11 a.m. on July 20, 1960, on U.S. Highway No. 16 where it enters the eastern edge of the village of Magnolia, Minnesota. The highway at this point is a 20-foot-wide, concrete highway running east and west. A short time before the accident, Mrs. Aanenson left her farm home located northeast of Magnolia. She was driving a new 1960 Ford owned by her brother whom she was taking to Sioux Falls, South Dakota, for medical attention. When she left the farm one of the rear tires appeared to be low and, fearing that there might be a slow leak, she determined to stop in Magnolia to investigate whether the tire had 'lost any more air' before taking it to a service station. The weather conditions were good and the pavement dry. Viewing the evidence most favorably to sustain the verdict, it appears that Mrs. Aanenson was driving west, and as she approached the village she began decreasing her speed and did reduce it below the 40- and 30-miles-per-hour posted limits before she was required to do so in obedience to these signs. At the same time defendant Norman Engelson, an employee of defendant Ray Engelson, d.b.a. Engelson Truck Service Company, was operating his employer's 1959 Chevrolet gravel truck some distance behind the Ford automobile. As plaintiff driver was passing the 40-miles-per-hour speed sign, she noticed defendant's truck some distance behind and thereupon turned on the automatic signal for a right turn, intending to drive off the highway onto a side road or some undetermined point beyond upon the right shoulder and stop to inspect the tire. When she turned on her signal device she was 'just a little ways' east of the side road known as Kenneth road, a 27-foot-wide, blacktop highway extending off Highway No. 16 to the north at a right angle. At this location the north shoulder of Highway No. 16 is somewhat wider than 10 feet and is level with the surface of the highway and Kenneth road, the latter road flaring to a width of about 60 feet as it joins the shoulder and traveled surface of Highway No. 16. The centerline of Kenneth road is about 160 feet east of a concrete private driveway, extending northerly, known as Lester driveway, in front of which the impact occurred. Because plaintiff driver noticed some inperfection in the surface of the intersection, she decided not to turn right on Kenneth road and continued 160 feet west with decreasing speed and her right turn-signal still operating. Defendants' version of how the collision occurred is found in the truckdriver's testimony as follows:

'Q. Now, Norman, in your own words will you tell the jury what happened?

'A. Well, I was going west on 16 and come upon this car, and this car made like she was going to go towards the Kenneth blacktop, on the Kenneth blacktop, and come back out on the street and up on the road again; and I figured that she was going to turn at the Kenneth blacktop, and then she went down the road further and she made a little jog like she was going to go into the Lester driveway, and then she was about half off the road and just about stopped, and I looked up to go around, and there was cars coming, and I hit the brakes as hard as I could, and I got a hard pedal and caught the back end of her car.'

1. From the close of the testimony plaintiffs have maintained that the court should have directed a verdict on the issue of liability. They argue that as a matter of law the truckdriver's negligence, in any one or all of the five following respects, was the sole cause of the collision: (1) Driving with known defective brakes; (2) following another vehicle too closely; (3) failing to maintain a proper lookout; (4) driving at excessive speed; and (5) misjudging the intention of plaintiff.

Plaintiffs base the first assignment of error principally upon the claim that the evidence compels a finding that the truckdriver, by his own admission, was driving with known defective brakes in violation of Minn.St. 169.67, subds. 1 and 5. ¹ They rely on Lee v. Zaske, 213 Minn. 244, 6 N.W.2d 793, where a motorist who drove at high speeds knowing that his brakes would not hold at such speeds was held to be negligent as a matter of law. It is true that the truck driver testified that he got a 'hard' pedal when he applied his brakes and that he knew his brakes were 'wore down a little bit' and needed to be pumped--once when the truck was empty and twice when it was loaded--in order to raise the pedal and put the brakes in working order. We agree that these admissions standing alone would show a violation of the statute and would require a finding of negligence and a jury instruction to that effect. However, in determining whether a jury issue was created, we cannot ignore the testimony that the brakes, although worn, were adequate after being pumped to control the movement and to stop the truck, and also that the driver varied the import of his testimony quoted above by insisting that he had pumped the brakes immediately before applying them to avoid striking the Ford. Since the pertinent provisions of the statute require only that brakes must be maintained in such good working order as to be adequate to control the movement of and to stop the vehicle, it is reasonable to infer, and thereby find, that the brakes after they were pumped complied with the statutory standard. In Lee v. Zaske, supra, there was no evidence which would have permitted a finding that the brakes were adequate to control or stop the vehicle. Whether the brakes were adequate and whether the driver in fact pumped the brakes were disputed factual issues for the jury and...