Bocchi v. Karnstedt, s. 35702

• Decision Date: 09 January 1953
• Docket Number: Nos. 35702,35836,s. 35702
• Citation: 238 Minn. 257,56 N.W.2d 628
• Parties: BOCCHI v. KARNSTEDT et al.
• Court: Minnesota Supreme Court

Page 628

56 N.W.2d 628

238 Minn. 257

BOCCHI v. KARNSTEDT et al.

Nos. 35702, 35836.

Supreme Court of Minnesota.

Jan. 9, 1953.

Rehearing Denied Feb. 4, 1953.

Syllabus by the Court.

1. Where two automobiles collided in an intersection, and a passenger in one of the automobiles recovered a verdict against both owners having claimed both were negligent and where, on motion by one defendant for judgment notwithstanding the verdict or a new trial, the court grants him judgment notwithstanding the verdict and where the court denies the motion of the other defendant for a new trial, Held that the second defendant is so prejudiced by the action of the court in granting judgment notwithstanding the verdict in favor of the other defendant that a motion to dismiss his appeal as to the successful defendant will be denied.

2. Upon the facts of the case the court did not err in directing judgment notwithstanding the verdict as to one of the defendants.

3. In view of the evidence of plaintiff's injuries, the pain and suffering which she has endured, the permanence of the injuries, and the decrease of earning power because of their nature, the verdict of the jury is not excessive.

4. No substantial prejudice to defendant resulted from remarks made by counsel for plaintiff in his arguments to the jury.

Freeman, King, Larson & Peterson, Minneapolis, Harry H. Peterson, Minneapolis, for appellant.

Faegre & Benson, Paul J. McGough and Wright W. Brooks, Minneapolis, for respondent Bartlett.

William H. DeParcq and Donald T. Barbeau, Minneapolis, for respondent Bocchi.

MAGNEY, Justice.

On February 5, 1950, at about 8 p.m., plaintiff was a guest passenger in an automobile owned and operated by defendant Hubert J. Bartlett. At the intersection of France avenue and West 39th street in Minneapolis and St. Louis Park, the boundary between the municipalities being the center line of France avenue, a collision took place between the automobile of defendant Bartlett and an automobile owned and operated by defendant Cal B. Karnstedt. Plaintiff was seriously injured. She brought an action against both automobile owners and recovered a verdict against them. Defendant Bartlett made an alternative motion for judgment notwithstanding the verdict or for a new trial, and defendant Karnstedt moved for a new trial. The court granted defendant Bartlett's motion for judgment notwithstanding the verdict and denied defendant Karnstedt's motion. Judgment was entered in favor of the plaintiff against defendant Karnstedt, and he appeals to this court from the orders granting defendant Bartlett's motion for judgment notwithstanding the verdict and denying his own motion for a new trial and also from the judgment.

Defendant Bartlett's car was a two-door Chevrolet. Plaintiff, Ursula Bocchi, was seated on the right-hand side of the front seat. A Mrs. Blanche Lenont was seated between plaintiff and Bartlett. Mrs. Bartlett and a son, James, were in the rear seat, the former on the right-hand side. Bartlett was driving southerly on France avenue. He had on the city driving lights. Bartlett was well acquainted with France avenue and knew that it was a through or arterial highway, protected on each side by stop signs. France avenue, between West 38th and West 39th street, has a five-percent downgrade. That block is approximately 585 feet long. France avenue is 36 feet wide, and West 39th street is 32 feet wide. Bartlett testified that he came down from 38th street at a speed of 20 to 25 miles an hour until near the intersection of 39th street. He looked for traffic on 39th street and saw none coming from the east. When about 100 to 125 feet from the intersection, he saw a car coming from the west. Both cars were at that time about the same distance from the intersection and traveling at about the same speed. Bartlett said that he continued on his way because he knew that France avenue was a through street and that the oncoming car from the west would be required to come to a full stop. He further stated that, when he reached the point where a crosswalk would be if one existed, he realized the other car was not going to stop, so he applied his brakes and turned to the left to avoid the collision. The other car did not change its speed and was still going 20 to 25 miles an hour. The right front of Bartlett's car collided with the left front side of the Karnstedt car, the two sides came together, and the Bartlett car spun like a top. When it stopped it was headed in a northerly direction but not on the main traveled portion of either street. Debris from the collision was found about a foot over on the west side of France avenue and a little to the south of the center line of 39th street. When Bartlett's car came to rest, the left front was 33 feet and six inches from the debris. Karnstedt's car was then 62 feet from the debris. Both cars were southeast of the intersection. The Karnstedt car stopped in a swamp, having gone over the curb, through quite a bit of snow, and through a fence.

Sixty-seven feet west from the intersection on 39th street one is able to see the headlights of cars coming down France avenue from as far up as 38th street. Bert Cole, Karnstedt's passenger, testified: 'Well, we approached France Avenue about 20 miles an hour, and stopped at the stop sign adjacent to it, and I looked to the right and up to the left I could see a car some distance, and then Mr. Karnstedt proceeded through the intersection.' Cole was then asked: 'What place in the block was it when you picked up sight of it?' He answered, 'Well, I would say approximately 150 to 175 feet.' He said that the Karnstedt car was then in a stopped position at the stop sign, that he saw the Bartlett car travel 50 to 75 feet altogether at a rate of 40 miles per hour, and that he noticed slackening of the speed of the Bartlett car about 20 feet away 'approximately.' It had started to swerve then. On cross-examination, he said that, when he saw the Bartlett car the second time, it was a foot or two away from the Karnstedt car. karnstedt testified that he did not know at what speed Bartlett was coming down France avenue. After the accident, plaintiff was found underneath the Bartlett car between the front and rear wheels on the right-hand side. The car was tipped over on its left side to get her out. She was severely injured and unconscious.

Police officers, who arrived at the scene shortly after the accident, testified that there was a strong odor of alcohol on Karnstedt's breath. About an hour and a half afterward they spoke to him at the hospital and the odor of alcohol was still present. Karnstedt and his passenger, Bert Cole, had been ice fishing at Lake Minnetonka that afternoon and said that on their way home they had stopped at a friend's house and had a couple of drinks.

Under the testimony, defendant Karnstedt was aware of the stop sign and chose to ignore it. As we said in Olson v. Anderson, 224 Minn. 216, 218, 28 N.W.2d 66, 68:

'* * * By doing so, he violated his duty to stop, look for, and yield the right of way to cars within the zone where they constituted an immediate hazard.'

1. Plaintiff has not challenged the correctness of the trial court's ruling in granting defendant Bartlett judgment notwithstanding the verdict. Defendant Karnstedt contends that he was prejudiced by such ruling and assigns it as error. Bartlett claims that the appeal should be dismissed as to him for two reasons: (1) that defendant Karnstedt did not raise the question in the court below and is attempting to raise it for the first time on the appeal, and (2) that defendant Karnstedt should not be deemed prejudiced by the trial court's action in granting Bartlett's motion for judgment notwithstanding the verdict. As to the first ground, it, of course, has been a settled rule of this court that we will not decide issues which are raised for the first time on appeal. Why the defendant Karnstedt should have raised the question in the trial court prior to the issuance of the order is not apparent. Admittedly, he probably could have called the attention of the court to the claimed error on a petition for rehearing of the motion. However, we are unable to see the force of the argument. As to the second ground, there is considerable validity if we should see fit to overrule American Motorists Ins. Co. v. Vigen, 213 Minn. 120, 5 N.W.2d 397, 142 A.L.R. 722. Defendant Karnstedt contends that granting defendant Bartlett judgment notwithstanding the verdict was prejudicial to him because thereby was destroyed all basis (1) for judgment establishing a common liability between the defendants to plaintiff and (2) for a claim of contribution of defendant Karnstedt against defendant Bartlett. At the time the order was made, the Vigen case, supra, expressed the law of the state relative to contribution, and, under that decision, defendant Karnstedt was clearly prejudiced by the order. Defendant Bartlett argues that the Vigen case should be overruled, thus restoring to Karnstedt the right to such contribution; that with a right to contribution, he would not be prejudiced by the court's order; and that his appeal should therefore be dismissed. We have, however, determined not to consider the Vigen case further at this time and under these circumstances. Because of the oft-occurring questioning of the correctness of the Vigen case, undoubtedly it will be given further consideration when the issue determined in that case comes squarely before the court. In view of what has been said, defendant Bartlett's motion to dismiss, as to him, the appeal of defendant Karnstedt will be denied.

2. The correctness of the court's order in granting defendant Bartlett judgment notwithstanding the verdict is challenged by defendant Karnstedt. In a memorandum attached to the order granting judgment notwithstanding the verdict, the court said:

'The evidence as a whole over-whelmingly preponderates to show that defendant...