Brown v. Murphy Transfer & Storage Co.

Decision Date10 November 1933
Docket NumberNo. 29502.,No. 29503.,29502.,29503.
Citation251 N.W. 5,190 Minn. 81
PartiesBROWN v. MURPHY TRANSFER & STORAGE CO. et al.
CourtMinnesota Supreme Court

Appeal from District Court, Waseca County; Fred W. Senn, Judge.

Action by R. R. Brown against the Murphy Transfer & Storage Company, the Witte Transportation Company, and others. Verdict for plaintiff against only the named defendants. The named defendants separately moved for judgment notwithstanding the verdict or a new trial, and, from orders denying the motions, they separately appeal.

Affirmed.

Stinchfield, Mackall, Crounse, McNally & Moore, of Minneapolis (Donald A. Holmes, of Minneapolis, of counsel), for appellant Witte Transp. Co.

G. P. Mahoney, of Minneapolis, for appellant Murphy Transfer & Storage Co.

Moonan & Moonan and Gallagher, Madden & Gallagher, all of Waseca, for respondent.

STONE, Justice.

Plaintiff had a verdict against Murphy Transfer & Storage Company and Witte Transportation Company, who separately moved for judgment notwithstanding or a new trial and separately appeal from the order denying those motions. The verdict exonerates the other defendants, Lewer Woodhall Cunningham Company and E. W. Lewer, from liability.

The suit is for personal injuries sustained by plaintiff about 1 o'clock a. m., August 5, 1932. He was then a passenger in an automobile owned by defendant Lewer Woodhall Cunningham Company and driven by defendant E. W. Lewer. They were going south on trunk highway No. 1 just north of Farmington. The Lewer car collided with the trailer of a truck of the Witte Company then parked on the pavement. In front of the Witte truck and also parked on the pavement was another owned by the Murphy Company. Both trucks were near 25 and the trailer about 12 feet long. The pavement was 18 feet wide. In stopping his truck, neither driver left the required clearance of 15 feet on the pavement. Mason's Minn. Statutes 1927, § 2720-24 (a). Each truck was heavily loaded, both south bound. A tire on the right rear dual wheel of the Murphy truck had blown out, and its driver, Ward, had stopped the Witte truck to secure the aid of its driver, Padelford, and his tools in making the necessary tire change.

Ward had kept his truck on the pavement to the extent necessary to permit jacking up the right end of the rear axle with the jack on the pavement rather than on the shoulder. On the earthen shoulder, instead of raising its load, the jack would have sunk into the earth under the lifting force. Ward's truck was not equipped with a plank to use as base for his jack so that the operation would have been practicable on the shoulder. He was not equipped with some other tools necessary to make the tire change. It was in the course of that operation that the accident occurred.

It is not difficult to equip trucks with flares to be used in case a machine is stalled in the nighttime on a highway. The Witte truck was so equipped, but only after the collision was one of its "flare lights" set out on the highway in the rear of the truck.

1. The negligence of both chauffeurs, Ward and Padelford, was at least a fact question. Not much fault can be found with a jury finding that, all else aside, it is negligent not to keep heavy motortrucks so equipped with tools and a plank or other adequate footing for the jack that a tire change can be made where possible without parking on the pavement. Aside from that and in the case of both drivers, the statute (Mason's Minn. Statutes 1927, § 2720-24 (a) was violated because the required clearance of 15 feet was not left for passing traffic. There is testimony for plaintiff, denied by witnesses for defendants, that the tail-lights of the Witte truck were not burning. Finally, there is the argument, good enough so that it cannot be denied as matter of law, that due care requires the proper and immediate use of a flare light when a truck is stopped on the highway in the nighttime as two were in this case.

2. Plaintiff was riding in the Lewer sedan on the right side of the front seat with his arm on the windowsill. He was a guest of Lewer. There is nothing to show that he had sufficient warning of the danger to make him chargeable with negligence as matter of law because he did not warn Lewer. The issue, if any, of contributory negligence, was for the jury.

3. We cannot hold as matter of law that the alleged negligence of Lewer was such a sole, independent, and intervening cause of the collision as to relieve appellants or either of them from liability. Juries are justified in finding that it is the duty of those obstructing the highway at any time to exercise a high degree of care to prevent collisions. While only ordinary care is required, it must be commensurate with the danger. The hazard in the nighttime, on a traffic artery such as trunk highway No. 1 south of the Twin Cities, is great. Upon Lewer also rested the duty to exercise a degree of care commensurate with the hazard. Even if we put aside the verdict in favor of himself and his corporation and charge Lewer with negligence as matter of law, we could not put it in the category of an independent, intervening cause so as to relieve appellants or either of them of liability. It would be at best an efficient concurring cause. Anderson v. Ry. Co., 146 Minn. 430, 179 N. W. 45; Edblad v. Brower, 178 Minn. 465, 227 N. W. 493; Olson v. Purity Baking Co., 185 Minn. 571, 242 N. W. 283; Johnson v. Mallory, 123 Neb. 706, 243 N. W. 872. Enough it is that evidence justifies the conclusion that the servants of both appellants were guilty of negligence "concurring with one or more efficient other causes" to injure plaintiff. Where two such causes "combine to produce injuries," the author of neither can escape liability "because he is responsible for only one of them." Palyo v. Northern Pacific R. Co., 144 Minn. 398, 402, 175 N. W. 687, 689; Camp v. Wilson, 258 Mich. 38, 241 N. W. 844.

4. There is no escape for the Murphy Company on the ground that the sole proximate cause of collision was the negligence of Padelford, driver of the Witte truck. Ward, driver of the Murphy truck, could well have been found to have implied authority in the emergency to employ assistance. Geiss v. Twin City Taxicab Co., 120 Minn. 368, 139 N. W. 611, 45 L. R. A. (N. S.) 382; State ex rel. Nienaber v. District Court, 138 Minn. 416, 165 N. W. 268, L. R. A. 1918F, 200; Booth & Flynn v. Price, 183 Ark. 975, 39 S.W. (2d) 717, annotated, 76 A. L. R. 957, 963. He did no more in stopping the Witte truck and asking aid from its driver. For the time being, the latter may be considered a coemployee with Ward of the Murphy Company. So, if he was negligent, the latter is liable under the doctrine of respondeat superior. It is rather obvious that the Murphy Company had the right of control over the Witte Company driver while the latter was assisting in repairing the former's truck.

5. It cannot be held as matter of law that the conduct of Ward, the driver of the Murphy truck, if negligent, was not a proximate cause of plaintiff's injury. We cannot say that Ward's conduct was only a "necessary antecedent" and not "a responsible cause," nor can we say, against the necessary implication of the verdict, that it did not have a "natural tendency to produce, in the ordinary course of nature," the result complained of, within the rule of Fitzgerald v. International Flax Twine Co., 104 Minn. 138, 116 N. W. 475.

With no regret we decline the invitation of the case to add to the already excessive literature of the law dealing, or attempting to deal, with the doctrine of proximate cause, much of which both "in case and in commentary is mystifying and futile." Cardozo, Paradoxes of Legal Science, 85. The search is for the "jural cause." Id. 82. There is enough in the evidence to sustain the conclusion that the concurring negligence of the two truck drivers made such a cause.

6. Neither can the Witte Company prevail as matter of law on the ground that Padelford, its chauffeur, had left its...

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