Adelmann v. Elk River Lumber Co.

• Court: Minnesota Supreme Court
• Writing for the Court: MATSON; PER CURIAM
• Citation: Adelmann v. Elk River Lumber Co., 242 Minn. 388, 65 N.W.2d 661 (Minn. 1954)
• Decision Date: 18 June 1954
• Docket Number: No. 36276,36276
• Parties: ADELMANN v. ELK RIVER LUMBER CO. et al.

Page 661

65 N.W.2d 661

242 Minn. 388

ADELMANN v. ELK RIVER LUMBER CO. et al.

No. 36276.

Supreme Court of Minnesota.

June 18, 1954.

Rehearing Denied July 30, 1954.

SYLLABUS BY THE COURT

1. Pursuant to M.S.A. § 169.14, subd. 3, as construed by this court, the mere presence of an intersection, although it bespeaks precaution, does not require an approaching motorist, possessed of the right of way, to drive at an appropriate reduced speed unless and until special hazards exist on and about such intersection with respect to pedestrians or other traffic or by reason of weather or highway conditions.

2. In prescribing that an approaching motorist forfeits his right of way for unlawful speed, § 169.20, subd. 1, uses the phrase 'unlawful speed' as embracing not only speeds in excess of the prescribed maximums but also speeds in excess of the appropriate reduced speed prescribed by § 169.14, subd. 3, for intersections where special hazards exist.

3. A trial court's erroneous statement of the evidence upon a pivotal fact, which might have had under all the surrounding circumstances an important bearing on the jury's evaluation of the evidence, is ground for a reversal.

4. The purpose of requiring objecting counsel to specify the ground or grounds of his objection to a hypothetical question is not merely to enable the court to rule intelligently thereon but also to afford opposing counsel an opportunity to amend and overcome the defect in his question if possible.

5. The objector to a hypothetical question must be reasonably specific as to which ground or grounds upon which he bases his objection, and insofar as interrogating counsel is in doubt as to the basis upon which the court sustains such objection it is his right to make inquiry of the court, and it is the court's duty to answer that inquiry.

Larson, Loevinger, Lindquist, Freeman & Fraser, Minneapolis, for appellant.

Meagher, Geer, Markham & Anderson, D. W. Nord and O. C. Adamson, II, Minneapolis, for respondents.

MATSON, Justice.

Plaintiff appeals from an order denying his motion to set aside the verdict and grant a new trial.

On April 25, 1954, at 4:30 p.m., plaintiff was proceeding north on Seventeenth avenue southeast in Minneapolis, Minnesota. The weather was clear and the streets were dry. As he approached the intersection of Seventeenth avenue southeast and Fourth street southeast he reduced his speed to about five miles per hour. As his panel truck reached the edge of the intersection he looked to his left and to his right and, seeing nothing coming from either way, he shifted gears and proceeded into the intersection.

Unseen by the plaintiff, a truck owned by defendant Elk River Lumber Company and operated by defendant Andrew Shipman, Jr., was proceeding west on Fourth street and approaching the same intersection. Defendant Shipman did not see plaintiff's truck until it was beginning to cross the streetcar tracks near the center of the street. At that moment defendant's truck was 30 feet from the intersection and proceeding at a speed of 30 miles an hour. Upon seeing plaintiff's truck, Shipman slammed on the brakes and, unable to stop, slid into the right side of plaintiff's truck at the northerly rail of the streetcar tracks. Plaintiff was unaware of the approach of defendant's truck until seconds before when his daughter, who was seated beside him said, 'You are going to get hit.' At her utterance he glanced out of the right window past her and saw the defendants' truck, but he was unable to avoid the collision which followed within a few seconds. Plaintiff's truck was tipped over on its left side and came to rest by the northwest corner of the intersection. Defendants' truck stopped at approximately the same place.

In plaintiff's action for damages the jury returned a verdict for the defendant. Plaintiff appeals from an order denying his motion for a new trial.

We need consider only these issues:

(1) Was it error to refuse to instruct the jury as to the duty of a driver to drive at an appropriate reduced speed when approaching the intersection when the jury could reasonably find that special hazards existed as to other traffic?

(2) Was it error for the court to state in its charge to the jury that 'as the Court recalls' the plaintiff testified that he entered the intersection without looking to his right?

(3) Was it prejudicial error for the court to refuse to indicate on what ground it had sustained an objection to a hypothetical question asked of an expert witness?

1-2. Plaintiff requested that pursuant to M.S.A. § 169.14, subd. 3, the jury be instructed that the defendant driver was required to drive at an appropriate reduced speed when approaching the intersection. Plaintiff's request as made was incomplete insofar as it failed to limit the appropriate reduced speed requirement at intersections to circumstances where special hazards exist. ¹ Pursuant to § 169.14, subd. 3, as construed by this court, the mere presence of an intersection, although it bespeaks precaution, does not require an approaching motorist, possessed of the right of way, to drive at an appropriate reduced speed unless and until special hazards exist on and about such intersection with respect to pedestrians or other traffic or by reason of weather or highway conditions. ²

The defendant driver, traveling west on Fourth street, approached the intersection at the prima facie reasonable speed of 30 miles per hour, and he continued at such rate until he was 30 feet away from the intersection when for the first time he saw the plaintiff who, according to defendant's testimony, was then just starting across the streetcar tracks. Under the circumstances the jury could reasonably have found, upon defendant's owntestimony and more clearly so upon plaintiff's evidence, that the plaintiff, who was traveling at a slow rate of speed, had actually entered the intersection and was in plain sight of the defendant long before the defendant first saw him. The jury could further find that the defendant in the exercise of reasonable care ought to have observed the special traffic hazard of plaintiff's presence upon the intersection and ought therefore to have reduced his speed appropriately in time to avoid the collision. Under the circumstances the plaintiff was entitled to an instruction that the prima facie reasonable speed of 30 miles an hour was not necessarily controlling and that the defendant was required to drive at an appropriate reduced speed if the jury found that a special traffic hazard existed upon the intersection. It is not to be overlooked that in prescribing that an approaching motorist forfeits his right of way for unlawful speed, § 169.20, subd. 1, uses the phrase 'unlawful speed' as embracing not only speeds in excess of the prescribed maximums but also speeds in excess of the appropriate reduced speed prescribed by § 169.14, subd. 3, for intersections where special hazards exist. ³ Although plaintiff's requested instruction was not stated with completeness, it was sufficient to call the court's attention to the appropriate reduced speed instruction which ought to have been given here.

3. In its charge to the jury the court said:

'* * * The plaintiff, Adelmann, testified, as the Court recalls, that he entered the intersection Without looking to his right for traffic coming from his right, and that at some time or at some point after entering the intersection, he looked to the right and saw nothing in a distance of 150 feet * * *.' (Italics supplied.)

According to the record, plaintiff testified positively that just before he proceeded into the intersection he looked first to the left And then to the right. There is nothing in the record to justify the court's statement of fact that plaintiff entered the intersection without looking to his right. It is true that later in the charge the jury was told to rely entirely upon its own recollection of the facts and to disregard any of the court's statements of fact which were not in accord with their own recollection. Usually minor misstatements of fact by the court are harmless when followed by a curative instruction to the jurors to rely upon their own recollection. In this case, however, the court's misstatement of a pivotal fact was so significant that, despite the court's curative admonition, the jury may reasonably have been misled. A trial court's erroneous statement of the evidence upon a pivotal fact, which might have had under all the surrounding circumstances an important bearing on the jury's evaluation of the evidence, is ground for a reversal. Larkin v. City of Minneapolis, 112 Minn. 311, 127 N.W. 1129.

4--5. Did the court err in refusing to give the ground for sustaining an objection to a hypothetical question asked of an expert witness? Plaintiff's counsel asked an engineer from whom he was trying to obtain an expert opinion to assume the truth of certain hypothetical facts and then to give an opinion as to the speed of defendant's truck at the point where the brakes were first applied. After several attempts to frame an acceptable hypothetical question, the following colloquy took place:

'Mr. Markham: I object to that on the ground, assuming facts not in evidence; calling for speculation and conjecture on the part of the expert, no proper foundation, And the same grounds I previously elicited.

'The Court: Objection sustained.

'Mr. Freeman: Might I inquire of the Court which of the numerous objections Counsel has propounded is within the point resulting in the sustaining of the objection. There were quite a string of them as I recall.

'The Court: Well, the objection is sustained, you heard the objection.

'Mr. Freeman: May we retire to chambers?

'Mr. Markham: I see no reason for that.

'The Court: We might as well proceed here, the Court has ruled on the objection. If the Court is in error, you know your remedy. We cannot spend an indefinite period of time in trying this lawsuit.' (...