Bowers v. Colonial Warehouse Co.
| Decision Date | 24 November 1922 |
| Docket Number | 22,987 |
| Parties | JOHN E. BOWERS, SPECIAL ADMINISTRATOR, ETC. v. COLONIAL WAREHOUSE COMPANY AND ANOTHER |
| Court | Minnesota Supreme Court |
Action in the district court for Hennepin county to recover $8,000 for the death of plaintiff's intestate. The case was tried before Hale, J., who at the close of the testimony denied defendants' separate motions for directed verdicts, and a jury which returned a verdict in favor of defendants. From an order denying his motion for a new trial plaintiff appealed. Affirmed.
When refusal to give instruction is not subject to review.
1. Unless an instruction requested is correct in form and applicable to the situation presented by the evidence, error cannot be predicated on the refusal to give it.
Failure of driver to sound horn not a violation of statute.
2. The driver of the auto vehicle in this case was not approaching the pedestrian so that a failure to sound the horn was a violation of section 2632, G.S. 1913.
Pedestrian negligent -- driver of truck free from blame.
3. It appeared that at a street crossing the driver of an auto truck stopped and started in obedience to the signal of a traffic policeman, that he started slowly when no one was in front of the truck, and that before the whole length of the truck had passed the first crosswalk a pedestrian approached thereon and heedlessly walked into the side of the truck back of the driver's seat. It is held that the jury could not well find the driver negligent, and no other verdict than the one rendered for defendants could stand.
Loring & Anderson and A. A. Tenner, for appellant.
Hoke Krause & Faegre, Tracy J. Peycke and R. F. Merriam, for respondents.
Plaintiff's intestate, a lad 15 years old, walked into the side of a moving truck on Hennepin avenue in Minneapolis, on November 18, 1920, stumbled and fell so that one of his legs was crushed under the rear wheel, resulting fatally. In this action to recover damages against the driver and his employer a verdict was returned for the defendants. Plaintiff appeals from the order denying a new trial.
The only error assigned is the refusal of the court to instruct as follows: "Upon approaching a pedestrian who is upon the traveled part of any highway * * * every person operating a motor vehicle shall slow down and give timely signal with his bell, horn or other device for signaling." This statute "is mandatory and requires the driver of a motor vehicle to slow down upon approaching a pedestrian upon the traveled part of a highway and upon approaching an intersecting highway, and to give timely signal with his bell, horn or other device for signaling." The statute referred to in the request, is the last sentence in section 2632, G.S. 1913. The request to charge was made orally and did not correctly quote the statute. It is quite clear that as then worded by the attorney it could not have been given, for the court was virtually asked to instruct as a legal proposition that the driver was negligent, it being admitted that he gave no signal. Nor do we think it was error to refuse to give that part of the request which purports to quote part of the statute referred to, for the situation disclosed by the evidence made it inapplicable. The facts were substantially these:
Fifth street crosses Hennepin avenue at right angles. On both streets are double tracks whereon street cars are operated. A traffic policeman with a semaphore to control the crossing was stationed at the intersection at a point east of the Fifth street tracks and far enough north of the Hennepin avenue tracks to clear the street cars moving thereon. The time was about ten minutes after 12 o'clock noon, on the day in question. As the truck proceeded westerly on the northerly side of Hennepin avenue, the semaphore mentioned was set against it on arriving at Fifth street, and it stopped. At that time, or directly thereafter, a street car also going westerly on Hennepin avenue stopped to take on and discharge passengers. Just how many feet north of the street car the truck was is not disclosed, but the so-called safety zone was between, and the truck had to keep north of the traffic policeman....
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