Borris v. Cox, 36551

• Decision Date: 25 November 1955
• Docket Number: No. 36551,36551
• Citation: 245 Minn. 515,73 N.W.2d 372
• Parties: Robert BORRIS, Appellant, v. William E. COX, Respondent.
• Court: Minnesota Supreme Court

Page 372

73 N.W.2d 372

245 Minn. 515

Robert BORRIS, Appellant, v. William E. COX, Respondent.

No. 36551.

Supreme Court of Minnesota.

Nov. 25, 1955.

Syllabus by the Court

1. The violation of highway traffic regulation act constitutes prima facie evidence of negligence and prevails as a controlling evidentiary factor against the violator only so long as there is an absence of evidence tending to show reasonable ground for such violation or tending to justify reasonable assumption that such violation was not negligent under the circumstances was therefore would not reasonably endanger violator or other persons entitled to act's protection.

2. Violator of highway traffic regulation act may overcome prima facie case against him by submitting evidence (1) to establish that there was reasonable excuse or justification for such violation; or (2) which would justify reasonable assumption that under circumstances present such violation was not negligent and therefore would not reasonably endanger violator or other persons entitled to act's protection.

3. In the absence of finding of excuse or justification for violation of act; or establishing that violator's action was based upon reasonable assumption that it was not negligent and therefore would not endanger him or anyone entitled to act's protection, such a violation may constitute negligence as a matter of law.

4. Where as here there is evidence that driver's violation of M.S.A. § 169.18, subd. 5(b)(2), which forbids passing another vehicle within 100 feet of an intersection or while crossing intersection, may have been undertaken because of reasonable assumption that such violation would not endanger driver or any other person entitled to the act's protection, Held jury issue was presented as to whether such violation constituted negligence proximately causing or contributing to the accident, which took place at intersection where violation occurred; and trial court erred in directing verdict against such driver because of such violation.

J. H. Frundt, Blue Earth, for appellant.

Putnam & Spencer, Blue Earth, for respondent.

THOMAS GALLAGHER, Justice.

Action for damages to plaintiff's Chevrolet dump truck arising out of a collision between it and defendant's Dodge pickup truck, which occurred September 8, 1953, at an intersection formed by two county highways approximately one mile west of Kiester. At the time plaintiff's truck was owned by Orie Wade and driven by the latter's employee Leo Whelan. The truck, as well as the cause of action for its damages, was subsequently transferred or assigned to Robert Borris who brought the present action.

At the close of the plaintiff's case, the trial court directed a verdict in favor of the defendant, stating to the jury that:

'* * * the plaintiff driver, that is, the driver of the plaintiff's truck, was the servant of Orie Wade, and that, therefore, his actions were imputed to Orie Wade. And it appears, under the Highway Act (M.S.A. § 169.18, subd. 5(b)(2)), that it is unlawful to pass another vehicle within one hundred feet of an intersection or while you are crossing an intersection. It appears, from the evidence, conclusively here that the driver of the plaintiff's truck attempted to pass the defendant's truck when he was within one hundred feet of the intersection or, as defendant claims on cross examination, when he was within the intersection. Therefore, the driver was prima facie guilty of negligence in attempting to pass the truck in question. It further appears from the evidence that no reasonable excuse was given why he passed the defendant's truck at the time in question. Therefore, the Court thinks that the plaintiff driver was guilty of negligence, as a matter of law, and that such negligence was a proximate cause of the collision in question. I, therefore, instruct the jury to find a verdict for the defendant.'

On appeal from an order denying plaintiff's subsequent motion for judgment notwithstanding the verdict or for a new trial, plaintiff contends that the issue of contributory negligence on the part of the driver of the plaintiff's truck, because of his violation of M.S.A. § 169.18, subd. 5(b)(2), should have been submitted to the jury.

The evidence viewed in the light most favorable to plaintiff would establish that on the date of the accident Leo Whelan, an employee of Orie Wade, was driving the latter's 1951 Chevrolet truck in the course of his employment in a westerly direction on county highway No. 8 at a point approximately one mile west of Kiester; that, at that time, defendant William E. Cox was driving his 1942 Dodge truck also in a westerly direction on such highway preceding Whelan as they approached the intersection where the accident occurred; that within 100 feet of such intersection Whelan picked up speed in an attempt to pass Cox; that before attempting such passage Whelan sounded his horn; that at that time Cox apparently in response to the signal pulled the Dodge over to his right as if to let Whelan pass; but that just before entering the intersection while plaintiff's truck was abreast of or slightly ahead of defendant's truck,...