Becklund v. Daniels, 34949

• Decision Date: 31 March 1950
• Docket Number: No. 34949,34949
• Parties: BECKLUND v. DANIELS et al.
• Court: Minnesota Supreme Court

Page 8

42 N.W.2d 8

230 Minn. 442

BECKLUND v. DANIELS et al.

No. 34949.

Supreme Court of Minnesota.

March 31, 1950.

Syllabus by the Court.

1. While a pedestrian has the right of way over vehicles at intersections where there are no stop-and-go lights if he is within the area of the crosswalks, that right of way does not absolve him from the exercise of ordinary care for his own safety under circumstances that would deter a person of ordinary prudence from so relying. In the case at bar, the evidence of the circumstances under which plaintiff was crossing an intersection justified the jury in finding that he was guilty of contributory negligence.

2. Violation of the pedestrian's right-of-way statute is only prima facie evidence of negligence. Since, in the case at bar, there was evidence tending to show a reasonable explanation for failure to yield the right of way to the pedestrian, the court properly submitted the question of the negligence of defendant driver to the jury.

3. Plaintiff's requested instructions were either covered by court's charge or properly denied.

Erickson & Erickson, Minneapolis, for appellant.

Meagher, Geer & Markham, Minneapolis, for respondents.

LORING, Chief Justice.

This is an action for personal injuries received by plaintiff October 18, 1946, while walking across the intersection of Cedar avenue and Sixteenth avenue south in Minneapolis when he came in contact with a car driven by defendant Elias Daniels and owned by defendant Kenneth Keisling. The jury rendered a verdict for defendants, and plaintiff appeals from the order denying his motion for a new trial.

This case has been tried twice. In the first action, the jury also found for defendants, but the court granted plaintiff's motion for new trial.

Cedar avenue runs north and south from Seven Corners, and Sixteenth avenue south runs in a northeasterly and southwesterly direction at the point where they intersect, making an oblique angle with Cedar avenue. Sixteenth avenue terminates at Cedar avenue, and Third street runs east from that intersection. Two and One-Half street intersects with and terminates at Cedar avenue at a point about half a block north of the Sixteenth avenue intersection. About 8 p.m. on October 18, 1946--a dark night--plaintiff was walking north on Cedar avenue on the west side of the street. He had come from a bar where he admitted that he had had two drinks of Paul Jones whiskey. When he reached the intersection at Sixteenth avenue, he looked in both directions but asserts that he saw no car coming. He then proceeded north across the intersection of Sixteenth and Cedar avenues. Because of the diagonal intersection, the distance from curb to curb is 126 feet. The lights at the intersection were so placed that there was a dark spot about midway across the space which plaintiff was attempting to traverse. When he had gone about 76 feet into the intersection, either he was struck by or he walked into the side of a 1936 Buick driven by defendant Daniels. The car was moving about 15 miles per hour and, according to the evidence, made a slow, gradual, 45-degree right turn from Cedar into Sixteenth avenue. Daniels' car had necessarily been in sight as it was driven south on Cedar avenue approaching Sixteenth avenue. Plaintiff testified that he saw the car starting to turn when it was opposite Erick's Bar, which is north of Sixteenth avenue on the west side of Cedar. The distance from the point where Daniels started to make his turn to the point of the accident is about 70 to 75 feet. Daniels admitted that he did not see plaintiff until just about the time the contact occurred and that he did not see in what direction plaintiff was going. Daniels' windshield was somewhat dirty, but not enough to interfere with his vision. The car was also dusty. He testified that he was looking straight ahead in front of his car and that at no time was there any pedestrian in the path of the car as he made the turn to his right. Plaintiff, he said, 'was to the left of me, left front fender.' He asserted that plaintiff's contact was with the left front fender. Both a police officer and Daniels observed marks from a person's hands on the top of the left front fender of the car, halfway back from the front of the fender, in such a position as to indicate that the person making the marks had been facing the side of the car. Defendant was driving with his city lights, whose beam is shifted somewhat from the left side of the road. It reduced the distance of the illumination in front of the car to about 100 feet. The surface of the street was dark. Plaintiff contended that he was struck below the right knee by the bumper and that he was standing still at the time. However, according to plaintiff's testimony, there were no bruises on the right side of the leg to corroborate his contention. He was knocked unconscious by the fall and received a comminuted fracture of the lower right leg.

1. Does the evidence sustain a finding of contributory negligence on the part of plaintiff?

Defendants' contention that plaintiff walked into the side of the car is supported in some degree by the hand marks on the top and middle of the fender and by Daniels' testimony that, at the time of contact, plaintiff was to the left of the left front fender. There is also evidence that there was no bruise or black-and-blue mark at or near the point on plaintiff's right leg where the fracture occurred, and no damage to his clothing in that area. Added to these facts is the evidence of plaintiff's having had two drinks of whiskey. Hence, defendants argue that plaintiff's leg could have struck some part of the moving front wheel, such as a tire lug on the 1936 Buick, or that the injury could have occurred by twisting the knee in falling or by striking the knee upon the pavement. Be that as it may, there are facts from which the jury could reasonably draw the conclusion that plaintiff was negligent either...