Aide v. Taylor
| Decision Date | 22 January 1943 |
| Docket Number | No. 33307.,33307. |
| Citation | 214 Minn. 212,7 N.W.2d 757 |
| Parties | AIDE v. TAYLOR. |
| Court | Minnesota Supreme Court |
Appeal from District Court, Dakota County; W. A. Schultz, Judge.
Action by Roy Aide against Prosper Taylor for personal injuries sustained by plaintiff when struck by defendant's automobile. After denial of his motion for judgment notwithstanding verdict, for plaintiff, the defendant appeals.
Affirmed.
Grannis & Grannis, of South St. Paul, for appellant.
Weyl & Weyl, of St. Paul, for respondent.
Plaintiff had a verdict for personal injuries. After denial of his motion for judgment notwithstanding the verdict, defendant appealed from the judgment.
Plaintiff was employed as an attendant in a filling station on the west side of Concord street, which extends north and south in South St. Paul. At each end of the filling station a driveway enters from the street. The street is about 45 feet wide with double streetcar tracks down the center and with paved roadways about 15 feet wide on either side. The station and the street were brightly illuminated.
Early in the morning of February 25, 1941, while in the street in front of the filling station, plaintiff was struck by defendant's automobile. Except for the illumination furnished by the station and street lights, it was dark at the time. Defendant, a police officer of South St. Paul, and one Mazar, another officer, were going northerly at a speed of about 25 miles per hour to answer a police call.
Plaintiff's version is that he was struck as he stepped around the front and to the side of a tractor-trailer trucking unit, parked facing south on the west side of the street adjacent to the curb between the driveways from the street at the filling station, to enter the cab from the street side to turn off the motor, which he kept running for alternate half-hour periods because it was cold. "As" he "came out into the street" plaintiff looked to the north for southbound vehicles but saw none. He did not look to the south, the direction from which defendant was approaching. There was no evidence to show where defendant's car was when plaintiff looked. If he had looked south, he could "easily" have seen defendant's car. When plaintiff stepped about three feet into the street beyond the tractor, defendant's automobile hit him, causing severe personal injuries.
Defendant's version is entirely different. He claims that he was proceeding on the east side of the street astride the easternmost streetcar rail; that there were some trucks parked on the east side of the street opposite the filling station; that plaintiff suddenly ran into the street from in front of a truck parked there to cross to the filling station; that he first saw plaintiff about ten feet ahead in front of his car; that defendant swerved to the right to avoid hitting him, but without success, and that after the accident he had plaintiff taken to a hospital.
Both parties relied in part on surrounding facts and circumstances to bolster their claims. Plaintiff showed that a screw driver and a pair of pliers which he had in his hand when hit were found at about the place where he claims he was struck; that his right leg was broken and bore marks from the bumper of defendant's car; and that immediately after the accident defendant was leaning over plaintiff near the tractor-trailer on the west side of the street.
Defendant and Mazar testified that it was customary to park trucks serviced at the filling station on the east side of the street and that some trucks were there at the time of the accident. Further, defendant produced a statement taken, so we were informed on the argument, at the hospital at about 10:30 in the morning of the accident to the effect that, when plaintiff was hit, he was returning to the filling station from a parking lot on the east side of the street owned by his employer and used for parking serviced trucks; that without looking to his left, that is, to the south, plaintiff started to run from in front of a truck parked on the east side of the street westerly across the street toward the filling station; that while crossing the street he was struck, but that he did not know exactly where; that plaintiff did not know in which direction the car which hit him was going; and that he did not know whether it had its headlights on. The statement is substantially the same as defendant's version of the accident.
Plaintiff countered with a frontal attack on the statement that it lacked all probative value. There was medical testimony to show that at the time it was procured plaintiff was unable to give a voluntary statement because he was then suffering much pain from his injuries and because he had had "several hypos of morphine" and was "still semi-conscious." He categorically denied any recollection of having made the statement. When interrogated, he asserted that the facts were not as set forth in the statement but, on the contrary, as he had testified.
Further, a coemploye of plaintiff testified that there were no trucks parked across the street from the filling station at the time of the accident. Plaintiff testified that some trucks were so parked. He also testified that in a conversation some months after the accident Mazar stated that he did not see plaintiff until he was on the left front fender of defendant's car.
On the trial defendant contended that plaintiff was guilty of contributory negligence as a matter of law for failure to look for vehicles approaching from the south before he entered the street. The court instructed the jury that, if plaintiff was struck while crossing the street as claimed by defendant, he was guilty of contributory negligence as a matter of law for failure to look to his left for approaching vehicles; but that if plaintiff was injured as he claimed, the issues of negligence and contributory negligence should be determined under instructions which, except for defendant's claim that he was entitled to a directed verdict, stand unchallenged.
Implicit in the verdict is a finding in accordance with plaintiff's version that the accident occurred on the west side of the street while plaintiff was going around the truck to turn off the motor. Here, as below, defendant challenges the verdict (1) as opposed to what he claims is the uncontradicted and unimpeached testimony of himself and Mazar, which he claims must be accepted as true under the rule of O'Leary v. Wangensteen, 175 Minn. 368, 221 N.W. 430; and (2) as contrary to law upon the ground that in any view of the evidence plaintiff was guilty of contributory negligence as a matter of law for failure to look to the south for approaching traffic, which would have been plainly visible to him had he looked.
1. This is not a case where defendant's claims are supported by uncontradicted and unimpeached testimony, but one rather where the evidence, both direct and circumstantial, with respect to the claims of the parties, is in conflict and where there is testimony to impeach witnesses for both parties.
The evidence as to the precise place where plaintiff was when he was struck is in direct conflict. Defendant and his witness, Mazar, testified that it was on the east side of the street. There was direct testimony by plaintiff, either entirely overlooked or ignored in the argument that defendant's evidence was uncontradicted, that, when he was hit, plaintiff was about three feet from the front of the tractor and about three feet from the westernmost streetcar rail. Although opposed by the testimony of defendant and Mazar, plaintiff's testimony alone is sufficient to sustain a finding supporting his version. In Benson v. Northland Transp. Co., 200 Minn. 445, 450, 274 N.W. 532, 534, we held, quoting 4 Wigmore, Evidence, 2 Ed., p. 309, § 2034: "In general, the testimony of a single witness [the plaintiff], no matter what the issue or who the person, may legally suffice as evidence upon which the jury may found a verdict."
Plaintiff's testimony cannot be rejected simply because at the hospital he gave the statement containing a contrary version. A statement is an admission of facts therein asserted. An admission, if believed by the trier of fact, is substantive evidence of the facts to which it relates. Litman v....
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