Anderson v. Ambroise, 26669.
| Decision Date | 01 June 1928 |
| Docket Number | No. 26669.,26669. |
| Citation | 174 Minn. 481,219 N.W. 769 |
| Parties | ANDERSON v. AMBROISE. |
| Court | Minnesota Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, St. Louis County; E. J. Kenny. Judge.
Action by Carrie Anderson against John Ambroise. From an order denying her motion for a new trial, plaintiff appeals. Reversed and a new trial granted.
A charge in a negligence case that plaintiff has the burden of proving that defendant knew, or, in the exercise of ordinary care, should have known, that the party injured was in such a position that she could not escape injury, held error. John Swinland, of Duluth, for appellant.
W. E. Whipple and G. W. Atmore, Jr., both of Duluth (L. K. Eaton, of Minneapolis, for counsel), for respondent.
Appeal by plaintiff from an order denying her motion for a new trial.
The action is one to recover damages for personal injury claimed to have been sustained by the plaintiff by reason of defendant's alleged negligence in the operation of an automobile.
The only errors necessary to be considered are in reference to the charge of the court. The situation was substantially as follows: The plaintiff was riding with defendant as his guest in his automobile. It was after dark. The automobile became stalled on an icy place in the road in attempting to go up a rise to turn off from the road onto a driveway to a farmhouse. The road at the turn was somewhat slanting, and covered with snow and ice, and the automobile failed to hold traction on the road, so that the wheels spun around on the ice, and the car stalled. Plaintiff claims, in her testimony, that attempts were made to get the car to move up the rise and failed; that she was thereupon requested by defendant to get out of the car, which she did; that she was on the downward slant side of the car, and intended to walk to the rear thereof; that she told defendant to let her know when he was going to start the car; that he suddenly started the car without warning her as she was walking alongside the car towards the rear thereof; that the car suddenly skidded towards and against her, threw her down, and caused her injury; and that defendant was negligent in so starting the car without warning her.
The court, at the outset, correctly defined negligence and the relative duties of the parties and the circumstances under which defendant would be liable. Later on in the charge the court made a number of statements which were not accurate. It stated, in reference to defendant's negligence:
‘If he did not know, or in the exercise of ordinary care would not have known, that she was in such a position that she could not escape, then, of course, he was not guilty of any fault or negligence.’
Again, it stated:
‘The burden is upon the plaintiff to prove that he (defendant) was negligent; that is, she must prove, in the first place, the conditions there were such that a person of ordinary prudence would have anticipated that the car would do just what it is claimed it did, and, in the second place, she must also prove that he knew, or, in the exercise of proper care, should have known, that she was in a position of danger, and...
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Shinofield v. Curtis
...our conclusion: Dungan v. Brandenberg, 72 Ariz. 47, 230 P.2d 518; Brown v. Arnold, supra, 303 Mich. 616, 6 N.W.2d 914; Anderson v. Ambroise, 174 Minn. 481, 219 N.W. 769; Williams v. Williams, 210 Wis. 304, 246 N.W. 322, This from Williams v. Williams, supra, is applicable here: '* * * a dri......
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