Bellman v. Posnick

• Decision Date: 23 February 1951
• Docket Number: No. 35289,35289
• Parties: BELLMAN v. POSNICK et al.
• Court: Minnesota Supreme Court

Page 475

46 N.W.2d 475

233 Minn. 268

BELLMAN v. POSNICK et al.

No. 35289.

Supreme Court of Minnesota.

Feb. 23, 1951.

Syllabus by the Court

1. The provisions of M.S.A. § 169.20 should be construed to mean that where two automobiles approach an intersection so nearly at the same time that there would be imminent hazard of collision if both continued the same course at the same speed the driver on the right has the right of way, unless he has forfeited it by traveling at an unlawful speed.

2. Thus, where a plaintiff's own testimony discloses that he entered an intersection only a split second ahead of the driver on his right and there was no evidence that the other driver was traveling at an excessive speed, he is contributorily negligent as a matter of law in failing to yield the right of way.

3. Where a plaintiff's own testimony discloses that a verdict against him was correct as a matter of law, alleged errors committed by the trial court in ruling on other evidence and in instructions to the jury are nonprejudicial.

William H. DeParcq, Minneapolis, for appellant.

Meagher, Geer & Markham, Minneapolis, for respondents.

LORING, Chief Justice.

In this action, plaintiff Benjamin Bellman seeks to recover damages for injuries to his person and property resulting from a collision between a car owned and driven by him and a car owned by defendant David Posnick and driven by defendant Barbara Posnick, his daughter. Hereinafter the word 'defendant' will be used to refer to Barbara Posnick, driver of the car. The case was tried before a jury, and there was a verdict for defendants. Plaintiff appeals, assigning as error the ruling of the trial court which excluded one item of his evidence, and the trial court's refusal to instruct that defendant was negligent as a matter of law.

This collision occurred at the intersection of Eleventh and Girard avenues north in the city of Minneapolis. Girard avenue runs generally north and south, and Eleventh avenue runs generally east and west, so that they intersect at approximately right angles. Prior to the collision, plaintiff was driving north on Girard avenue, and defendant was driving west on Eleventh avenue. Since Girard avenue approaches Eleventh avenue from the south at a 7.3-percent grade for the last 300 feet and since Eleventh approaches Girard avenue from the east at a 7.4-percent grade for the last 100 feet, both cars were climbing more than a 7-percent grade as they traveled the last 100 feet to the intersection. The comparative steepness of these grades is indicated by the fact that the maximum grade allowed on a state highway is five percent, and the maximum grade deemed desirable for city streets is three percent.

1--2. Taking plaintiff's own testimony, it appears that he first observed defendant's car when he was approximately 40 feet from the intersection. When he was within 30 feet of the intersection, he saw defendant approximately 60 feet from the intersection. He then accelerated his speed from about 15 to about 17 miles per hour and proceeded. Although there is considerable conflict in the testimony and other evidence as to the speed at which defendant was traveling, there is no evidence that she was going over 30 miles per hour. Defendant claims to have been traveling about 20 miles per hour. For present purposes we may assume, as plaintiff contends, that defendant was traveling 30 miles per hour. On these facts, defendant would have been traveling about 45 feet per second, and plaintiff would have been traveling about 25 1/2 feet per second. The result of calculations based on these estimates of speed and distance is that when plaintiff was within 4 1/2 feet of the intersection defendant was only 15 feet from it. Since both streets are 32 feet wide, defendant would have needed at least a second and a half to clear the intersection safely if both cars continued their speeds unslackened. However, the same computations show that in less than a second--of the second and a half that defendant would have needed to cross safely--defendant would have reached the middle of the intersection; or, describing the situation from a different point, when the front of defendant's car reached the east boundary of Girard avenue, the front of plaintiff's car was four feet into the 32-foot intersection, so that plaintiff could have traveled another 12 feet before reaching the northern half of Eleventh avenue, in which defendant was driving. Although plaintiff testified that he could have stopped within about 10 feet, he did not attempt to do so.

Taking plaintiff's own testimony as representing the manner in which this accident occurred, we think that plaintiff must be held contributorily negligent as a matter of law. This same general problem came before this court in Moore v. Kujath, 225 Minn. 107, 29 N.W.2d 883, 175 A.L.R. 1007, a case in which the jury had returned a verdict in favor of defendant, both in the main action and on defendant's counterclaim. Plaintiff appealed on the ground that defendant was negligent as a matter of law and should have been barred on his counterclaim. Defendant in the Moore case was in approximately the same situation as plaintiff in the present case claims to have been in, except that defendant there, unlike the present plaintiff, claimed not to have seen the other car until the moment of impact. There, the court said, 225 Minn. 111, 29 N.W.2d 885: 'Defendant contends that he entered the intersection first, although a review of the facts most favorable to him would reasonably justify an inference that if he did so it was by only one or two seconds, * * *.'

The court, having made the above statement, proceeded to analyze the applicable statutory law and, in so doing, quoted the first sentence of M.S.A. § 169.20, subd. 1, which reads as follows: 'The driver of a vehicle approaching an intersection shall yield the right of way to a vehicle which has entered the...