Barrett v. Nash Finch Co.

• Decision Date: 25 March 1949
• Docket Number: No. 34872.,34872.
• Citation: 36 N.W.2d 526,228 Minn. 156
• Parties: BARRETT v. NASH FINCH CO. et al.
• Court: Minnesota Supreme Court

36 N.W.2d 526

228 Minn. 156

BARRETT v. NASH FINCH CO. et al.

No. 34872.

Supreme Court of Minnesota.

March 25, 1949.

Appeal from District Court, Stearns County; D. M. Cameron, Judge.

Action by Anna Barrett, special administratrix of the estate of Leon H. Barrett, deceased, against the Nash Finch Company and another for wrongful death resulting from an automobile collision. Verdict for the plaintiff, and defendants appeal from an order denying their alternative motion for judgment or a new trial.

Affirmed.

C. E. Warner, of Minneapolis, and Atwood & Quinlivan, of St. Cloud, for appellants.

G. P. Mahoney and John S. Morrison, both of Minneapolis, and Harry E. Burns, of St. Cloud, for respondent.

PETERSON, Justice.

Plaintiff recovered a verdict in a wrongful-death action, and defendants appeal.

The appeal presents two questions for decision: (1) Whether the driver of an automobile, who in violation of statute turned from an intersecting highway onto the lane on his left side of the road adjacent to a raised concrete island of a four-lane highway having two lanes on each side of the island, was guilty of contributory negligence as a matter of law because of his violation of the statute, where because of mechanical difficulties his car stopped and its lights went out, but the place where it stopped was well lighted, and, while he was attempting to push his car backward with the left car door open to get it off the highway, the defendant operator of the defendant owner's autotruck approaching in the right lane on his side of the road with ample room to pass saw the standing car when he was about 150 feet away while he was approaching it at from 20 to 25 miles per hour, at which rate of speed he could have stopped within a distance of about 30 feet, but failed to do so, and collided with the standing car; and (2) whether under the circumstances stated in the foregoing question a fact issue was raised as to whether the driver of the automobile which stopped on the wrong side of the road was guilty of contributory negligence because of violation of statute consisting of failure to have his lights on.

The collision occurred about midnight on highway No. 52 just west of its intersection with Twenty-third avenue, a mile inside the western boundary of St. Cloud. Highway No. 52 extends in a general east-west direction. At the place in question it has two paved lanes with a tarviated shoulder on each side separated by a raised concrete island down the middle. The lanes on the north side of the island are for westbound traffic, and those on the south side thereof for eastbound traffic. Twenty-third avenue intersects highway No. 52. The area there is well lighted. Decedent, Barrett, drove his automobile north on Twenty-third avenue and turned west onto highway No. 52 into the eastbound lane on his left side of the road adjacent to the island. When he barely got over the intersection line, his car stopped, with its front facing northwesterly (to Barrett's right) at an angle to the island, and its lights went out. He then got out, and, with the left front door open, he attempted with assistance from Anthony Herges, his passenger, to push his car backward to get it off the pavement. There was evidence showing that Barrett had drunk considerable intoxicating liquor immediately prior to the accident. His alleged intoxication was an important part of the defense.

Defendant Ellsworth Pallies, driving the autotruck of defendant Nash Finch Company, approached from the west on his right side of the road in the paved south half of the eastbound lane. When Pallies was about 150 feet away from the Barrett car, he saw that it was standing on the pavement with the door open. He could see Barrett through the window of the open door. Pallies was then going about 20 to 25 miles per hour and could have stopped within a distance of about 30 feet. He testified that, because the front left door of the Barrett car was open and he could see Barrett's head through the door window, he thought Barrett was about to make a left turn across his path. He had ample room to pass the Barrett car by proceeding in the lane he was then in or by turning onto the tarviated shoulder, but instead he continued to approach, first swinging slightly to the left and then to the right, and, when it was too late to avoid a collision, applied his brakes. The autotruck hit the front left fender of the Barrett car. As a consequence, Barrett sustained injuries from which he died.

The trial judge submitted to the jury the questions whether Pallies was guilty of negligence and whether Barrett was guilty of contributory negligence, not only because of his failure to exercise due care for his own safety, but also because of his violation of statute in driving an automobile while intoxicated. At the conclusion of the charge, defendants suggested that a further charge should be given to the effect that Barrett was guilty of contributory negligence because of his alleged violation of statute by failing to have his lights on. The court refused so to charge. On the appeal, defendants contend (1) that Barrett's contributory negligence in stopping his car on the wrong side of the road in violation of statute appears as a matter of law; and (2) that Barrett's contributory negligence for failure to have his lights on in violation of statute was a fact issue which should have been submitted to the jury, but was not.

1. It is elementary that it is for the legislature to determine what the consequences of a violation of statute shall be, and whether in a given case the violation shall constitute a nuisance or negligence, Flaherty v. Great Northern Ry. Co., 218 Minn. 488, 16 N.W.2d 553; Hanson v. Hall, 202 Minn. 381, 279 N.W. 227, or a ground for the recovery of a penalty, Mayes v. Byers, 214 Minn. 54, 7 N.W.2d 403, 144 A.L.R. 821. The provision of M.S.A. § 169.96 that a violation of the highway traffic regulation act "shall not be negligence per se but shall be prima facie evidence of negligence only" evinces a legislative intention that negligence shall be the ground of recovery for acts which the statute declares unlawful and that a violation of the act shall be only prima facie evidence of negligence. Flaherty v. Great Northern Ry. Co., supra. As said in Dart v. Pure Oil Co., 223 Minn. 526, 533, 27 N.W.2d 555, 559, 171 A.L.R. 885, quoting from Osborne v. McMasters, 40 Minn. 103, 105, 41 N.W. 543, 12 Am. St.Rep. 698:

"* * * Negligence is the breach of legal duty. It is immaterial whether the duty is one imposed by the rule of common law requiring the exercise of ordinary care not to injure another, or is imposed by a statute designed for the protection of others. * * * The only difference is that in the one case the measure of legal duty is to be determined upon common-law principles, while in the other the statute fixes it. * * * All that the statute does is to establish a fixed standard by which the fact of negligence may be determined."

The statute considered in the Osborne case contained no provision similar to the one quoted supra from § 169.96, to the effect that a violation thereof shall constitute only prima facie evidence of negligence, and for that reason it was held in the Osborne case that the violation of the statute there considered was negligence per se.

2. It logically follows that, in order to constitute actionable negligence or contributory negligence as a defense, the violation of statute upon which the claim of negligence is predicated must, the same as negligence independent of statute, be the proximate cause of the harm for which recovery is sought. Olson v. Hector Const. Co., Inc., 216 Minn. 432, 13 N.W.2d 35; Erickson v. Morrow, 206 Minn. 58, 287 N. W. 628; Krinke v. Gramer, 187 Minn. 595, 246 N.W. 376; Harrsch v. Breilien, 181 Minn. 400, 232 N.W. 710. If Barrett's alleged violations of statute were not the proximate cause of the collision causing his death, they are of no consequence.

3. Under § 169.18, subd. 1, it was...