Benson v. Dunham, 41494

• Decision Date: 13 February 1970
• Docket Number: No. 41494,41494
• Citation: 286 Minn. 152,174 N.W.2d 687
• Parties: Ronald M. BENSON, as Trustee for the Heirs of Mae G. Benson, Deceased, Appellant, v. Francis J. DUNHAM, Respondent.
• Court: Minnesota Supreme Court

Page 687

174 N.W.2d 687

286 Minn. 152

Ronald M. BENSON, as Trustee for the Heirs of Mae G. Benson Deceased, Appellant, v. Francis J. DUNHAM, Respondent.

No. 41494.

Supreme Court of Minnesota.

Feb. 13, 1970.

Syllabus by the Court

Evidence that decedent was familiar wth highway and weather conditions and had traveled a well-marked route each day for many years, when she skidded up an incline into a heavily traveled arterial highway without stopping and collided with defendant, was sufficient to overcome the statutory presumption she was exercising due care for her own safety. Under such conditions, it was proper for the trial court to find as a matter of law that she was guilty of negligence which was a proximate cause of the accident.

John H. Rheinberger, Stillwater, for aplant.

Murnane, Murnane, Battis, DeLambert & Conlin, St. Paul, for respondent.

Heard before KNUTSON, C.J., and OTIS, ROGOSHESKE, SHERAN, and FRANK T. GALLAGHER, JJ.

OPINION

OTIS, Justice.

This is an action to recover damages for death by wrongful act, arising out of an intersection collision between two automobiles. The trial court held as a matter of law that defendant was not negligent and that decedent was herself guilty of contributory negligence, and directed a verdict in favor of defendant. The trustee appeals from an order denying a new trial.

The accident occurred on February 7, 1966, shortly after 6 o'clock in the morning, about 4 miles west of Stillwater, Minnesota. Defendant was driving west on Trunk Highway No. 36, from Osceola, Wisconsin, to St. Paul. The decedent, Mrs. Mae G. Benson, was driving south on County Road No. 37 from her farm home to Minneapolis. It was an extremely foggy morning, and visibility was limited to approximately 2 car lengths. The surface of the highway was frosty and slippery. Defendant testified that as he crossed the intersection of County Road No. 37 he saw a flash of light 25 feet to his right, following which the collision occurred. His vehicle came to rest facing east, some 90 feet west of the intersection, on the south side of the pavement. The Benson vehicle stopped about 40 feet west of the intersection, on the south edge of the pavement, facing southwest.

Testimony which was decisive was elicited from a highway patrolman who examined the scene of the accident immediately following the collision. Highway No. 36 is a divided arterial highway. Traffic entering from the north on County Road No. 37 crosses a service road and goes up a slight incline to reach the main traveled portion of Highway No. 36. The arterial stop sign is located between the service road and Highway No. 36. The patrolman testified there were 34 feet of parallel skid marks in the westerly half of County Road No. 37 running north from a point 5 feet north of the center of the westbound lane of Highway No. 36. From the end of the skid mark there was a gouge on the highway described as 'a curlicue' about a foot long, curving westward, followed by a gouge mark 23 feet, 2 inches long leading to the point where decedent's car came to rest.

Mrs. Benson, who was 43 years of age, lived about 2 miles north of Highway No. 36 and for 16 years had taken the same route on County Road No. 37 and Highway No. 36 to her place of work 5 days a week. As she approached Highway No. 36, she was confronted with six successive signs, beginning 850 feet north of Highway No. 36, warning her of her impending approach to the main highway. The first warned, 'Stop Sign Ahead'; the second, 'Junction 36'; the third, 'Twin Cities'; the fourth, 'Frontage Road'; the fifth, 'Service Road'; and the sixth a conventional stop sign.

The trial court gave the following reasons for granting defendant's motion for a directed verdict:

'Now, at one point in this case, and in the early part of the case at least, it would seem that the plaintiff was clothed with the presumption of due care since the plaintiff decedent is now dead--did not survive the accident, and, of course, cannot testify as to what was done. However, it is the opinion of the Court that the testimony of Officer Nelson, which is the only testimony that would show any manner at all in which she entered the intersection--that Mrs. Benson entered the intersection, was that there were skid marks of thirty-four (34) feet. The Court, under those conditions feels that she did not enter the highway in compliance of legal requirements and the duty of all persons to use due care. The only testimony with respect to the manner in which the decedent entered the highway was the testimony of Officer Nelson who investigated the accident and who described the skid marks that led to the gouge marks and from thence to the plaintiff's automobile. ...