Aasen v. Aasen

• Decision Date: 18 February 1949
• Docket Number: No. 34794.,No. 34793.,34793.,34794.
• Citation: 228 Minn. 1,36 N.W.2d 27
• Parties: AASEN v. AASEN et al.
• Court: Minnesota Supreme Court

36 N.W.2d 27

228 Minn. 1

AASEN v. AASEN et al.

No. 34793.

No. 34794.

Supreme Court of Minnesota.

February 18, 1949.

Appeal from District Court, Pope County; E. R. Selnes, Judge.

Action by Hilda Aasen against Clara Aasen and others for injuries. Judgment for plaintiff, and defendants appeal.

Affirmed.

Field, Field & Arvesen, of Fergus Falls, and N. C. Callaghan, of Glenwood, for appellants Arthur Hanson and Bertha Moan.

Johanson, Winter & Lundquist, of Wheaton, for appellant Clara Aasen.

Kenneth H. Dell and John J. McCarten, both of Alexandria, for respondent, Hilda Aasen.

FRANK T. GALLAGHER, Justice.

This is an action to recover for injuries sustained by plaintiff arising out of a collision between a 1937 Ford automobile owned by defendant Clara Aasen, daughter of plaintiff, and driven by her father, G. T. Aasen, husband of plaintiff, and a 1931 Chevrolet automobile owned by defendant Arthur Hanson and driven by defendant Bertha Moan.

Both drivers were operating the automobiles with the full consent and permission of the respective owners. For obvious reasons, G. T. Aasen was not joined as a party defendant. The jury returned a verdict of $5,378 for plaintiff against all the defendants. After plaintiff had consented to the elimination from the verdict of certain medical expenses not properly recoverable by her in her suit, but which were items for which plaintiff's husband could recover, and a consequent reduction of the verdict to $4,931, the trial court denied the motions of the defendants for judgment notwithstanding the verdict or a new trial. From the judgment entered, the defendants appeal.

The collision occurred at about seven o'clock in the evening of October 10, 1945, on a strip of highway about 120 feet long extending northeast and southwest between two curves on a highway in a rural area. The surface of the highway, although graveled, was smooth and level, and there was no center line marked. Although it was only dusk and visibility was good, both drivers had turned on their lights. Except for the testimony as to the directions in which the two cars were traveling, the evidence is in irreconcilable conflict. The Aasen car was traveling northeast and the Hanson car southwest. As the Aasen car rounded a curve into the 120-foot strip, the Hanson car was coming down a hill on a curve at the other end of the strip. There were no other cars on the highway, and each driver had a clear view of the entire strip. According to the testimony of G. T. Aasen, the lights of the Hanson car were so glaring that when the cars were about 120 feet apart he pulled down his sun visor. This restricted his vision to about 10 or 15 feet ahead. Aasen continued forward on his side of the highway, close to the shoulder, traveling between 20 and 25 miles per hour. The Hanson car was approaching him at a speed of from 50 to 60 miles per hour. Almost immediately after Aasen pulled down his sun visor, the Hanson car came in on Aasen's side of the highway, causing the collision. This is disputed by testimony for Hanson and Moan, whose claim is that the Hanson car stayed on the right side of the road; that its speed was about 15 to 20 miles per hour and the speed of the Aasen car about 40 to 45 miles per hour; and that the Aasen car swerved over the center of the road and thereby causing the collision.

In December 1946, Arthur Hanson and Bertha Moan brought suit against G. T. Aasen for damage to the Hanson car and for injuries to Bertha Moan. G. T. Aasen counterclaimed against both for personal injuries and damage to the Aasen car. These cases were consolidated in the trial court and a verdict was returned for G. T. Aasen. On appeal, this court decided that the question of contributory negligence was one of fact and not of law under the evidence, and affirmed the verdict of the jury finding in effect that the sole cause of the accident and the injuries and damage which proximately resulted therefrom was the negligence of Arthur Hanson and Bertha Moan. Moan v. Aasen, 225 Minn. 504, 31 N.W.2d 265.

1. After the collision, the Aasen car remained entirely on the traveled part of the highway at an angle of about 45 degrees, with the left front portion of the car over the center of the highway. Testimony as to the distance which the Aasen car extended over the center of the road varied from "a little bit over" to three or four feet over. The Hanson car, on the other hand, was off the shoulder of the road on the northwest side of the road, with the rear wheel in the water of a small lake bordering the highway on that side. Most of the broken glass and other debris from the collision was on the Hanson or northwest side of the road. Moan and Hanson contend that these physical facts demonstrate that the impact occurred on the Hanson side of the highway and that therefore G. T. Aasen was the person whose negligence was responsible for the accident and that the liability for any damage should be charged to Aasen alone. Hanson and Moan allege as error the trial court's refusal to give the jury a requested instruction in the following language: "If you find that the cars collided on the north or Hanson side of the road, then, under the evidence in this case, I instruct you that you must bring in a verdict in favor of the defendants Hanson and Moan."

There were no uninvolved witnesses to the collision or to the position of the two cars in respect to the center of the road immediately prior to the collision. The only testimony on these points comes from those who were either passengers or drivers of the two cars involved, and their testimony is diametrically opposed, each claiming that his car was on the right side of the road and that the other car crossed the center. From such evidence the jury could have properly found that one, the other, or both of the drivers had crossed the center and that either or both were guilty of negligence. Physical facts are of aid to the jury, but need not be conclusive of how the accident happened. See, Romann v. Bender, 190 Minn. 419, 424, 252 N.W. 80, 82. This case does not fall within the doctrine of Reiter v. Porter, 216 Minn. 479, 13 N.W.2d 372.

It was for the jury to determine from all the evidence whether or not either driver was negligent in the operation of the automobile he was driving. To have given the instruction requested by Hanson and Moan would have misled the jury by an incorrect statement of the law, for it would have eliminated from consideration by the jury any questions of recklessness or incompetence on the part of Bertha Moan, as well as other elements of law properly for the jury's consideration in this case. Instead of giving this requested instruction, the court properly instructed the jury on this point of law by reading to them certain passages from the highway traffic regulation act, M.S.A. § 169.18, subd. 1, which we quote, together with the court's comments thereon:

"`Upon all roadways of sufficient width a vehicle shall be driven upon the right half of the roadway, except as follows:' and then follows certain exceptions that are not important here. The rule for passing [subd. 2]:

"`Drivers of vehicles proceeding in opposite directions shall pass each other to the right, and upon roadways having width for not more than one line of traffic in each direction each driver shall give to the other at least one-half of the main traveled portion of the roadway, as nearly as possible.'"

The trial court then properly instructed the jury that violation of such rules was merely prima facie evidence of negligence and that such violation could be explained and the driver thereby relieved of liability.

2. In his argument to the jury, counsel for Clara Aasen read a portion of the testimony of Milo Nelson, a witness called by plaintiff. Counsel for Hanson and Moan objected to this, and they now allege that the court erred in overruling this objection and allowing counsel for Clara Aasen to proceed. It is elementary that the conduct of a trial generally rests in the discretion of the trial court. This includes the practice of reading to the jury excerpts from the court reporter's transcript. Reed v. State, 147 Ind. 41, 46 N.E. 135; 64 C.J., Trial, § 275. After the close of the reception of testimony and the admission of evidence, any practice whose purpose is to create a primary impression of facts upon the minds of the jurors is of doubtful propriety, but, nevertheless, the reading of portions of the transcript of testimony to the jury by counsel is permitted in Minnesota. In Bonderson v. Hovde, 150 Minn. 175, 178, 184 N.W. 853, 854, this court said: "* * * This practice is so common and sometimes so necessary to enlighten the jury that we should encourage rather than discourage it, when permitted with such an exercise of fairness as was exhibited by the court in this case."

There is no showing in the instant case that the trial court abused its discretion in allowing counsel for Clara Aasen to read from the court reporter's transcript, and there is no showing that Hanson and Moan were in any way prejudiced so as to require action by this court to insure the proper administration of justice.

3. Hanson and Moan also allege as error the action of the trial court in allowing G. T. Aasen to give his estimate of the speed at which the Hanson car was traveling. Aasen first noticed the Hanson car when it was about 2,200 feet away, and he observed it up to the point where he turned down his sun visor at the time the Hanson car was 120 feet away. During this time, Aasen's view of the Hanson car was unobstructed, and, according to his testimony, he observed the Hanson car during that period in the same manner that most drivers observed an approaching automobile. Ordinarily, the speed of an automobile is not a matter of exclusive expert knowledge and skill, and anyone of reasonable intelligence, with ordinary knowledge of time and distance, is a competent witness to give an estimate....