Buck v. Dibble, 49106.

• Decision Date: 20 July 1979
• Docket Number: No. 49106.,49106.
• Citation: 281 NW 2d 724
• Parties: Dale J. BUCK, et al., Respondents, v. Brenda K. DIBBLE, et al., Appellants.
• Court: Minnesota Supreme Court

281 N.W.2d 724 (1979)

Dale J. BUCK, et al., Respondents, v. Brenda K. DIBBLE, et al., Appellants.

No. 49106.

Supreme Court of Minnesota.

July 20, 1979.

Lommen, Cole & Stageberg and Mark N. Stageberg, Minneapolis, for appellants.

O'Brien, Ehrick, Wolf, Deaner & Downing and Thomas E. Wolf, Rochester, for respondents.

Considered and decided by the court en banc without oral argument.

WAHL, Justice.

This is an appeal from a denial of defendants' alternative motion for judgment notwithstanding the verdict, a new trial, or a remittitur, and from the judgment. The action, which arose out of an intersection collision, was brought by Dale and Johnell Buck against Brenda K. Dibble and Barry F. Dibble, the owner of the automobile she was driving, to recover for personal injury and property damage sustained by Dale Buck and consequential damages sustained by Johnell.

The collision occurred about 3 p. m. August 2, 1974, at the uncontrolled intersection of Third Street, an east-west street, and Third Avenue Northwest, a north-south street, in Kasson, Minnesota. The streets were straight, level, and dry, and drivers on both had an unobstructed view of the intersection except for a brief period when their view was partially obscured by a house and bush on the southeast corner of the intersection.

Dale Buck was driving west on Third Street in a red 1971 Ford and Brenda Dibble was driving north on Third Avenue in her husband's 1967 Chevrolet. The speed limit was 30 miles per hour, and both drivers said that their speed while traveling the 3 blocks before the intersection was about 20 miles per hour. Plaintiff said he looked both ways while 30 to 50 feet from the intersection and saw no traffic on Third Avenue. Before entering the intersection he again looked to his left and saw defendant's vehicle coming north about a half block away. As he entered the intersection, he removed his foot from the accelerator. He then looked again to his left and saw defendant's automobile close to his. He attempted to accelerate, but his automobile was struck on the left side behind the driver's door by the front of defendant's automobile. The front part of plaintiff's vehicle had passed the center line of the intersection when the impact occurred.

Defendant testified that she looked both ways when her automobile was alongside of the house on the southeast corner of the intersection and saw no vehicles on Third Street, looked to her right again when she was 10 to 15 feet from the intersection and saw no vehicle coming, and looked a third time when she was near the edge of the curb and saw no vehicle. Her view of Third Street was unobstructed the second and third times she looked to her right. She entered the intersection without reducing speed, then suddenly saw a "red blur," and attempted to brake before impact.

Milo Bjergum, the police officer called to the scene, testified that after impact defendant's automobile skidded 20 feet and stopped in the middle of Third Avenue with its front somewhat north of the north edge of the intersection while plaintiff's automobile came to rest with the front end 8 feet west of the west edge of the intersection and facing northeast. A sideways sliding skid mark 40 feet long indicated that the rear of his automobile had been swung in an arc counter-clockwise to the northwest. Bjergum found debris in the northeast quadrant of the intersection. On cross-examination the officer responded affirmatively when asked if he attempts to determine whether vehicles had been speeding when he investigates accidents; if the kind of skid marks left by vehicles can aid in determining speed; and if plaintiff's automobile had left 40 feet of skid marks, had bounced on the curb, and had spun in more than a 180-degree turn. On redirect he testified there was no evidence of excessive speed by either vehicle. On recross-examination he said he could not recall telling an investigator that it appeared to him plaintiff had exceeded the speed limit. Asked if the facts the Buck automobile left 40 feet skid marks, went over the curb, and turned around were indicative the driver was exceeding the speed limit, the officer said he "would have to draw a conclusion on that" and could not say. Pressed further, he expressed his "feelings" that "it could have been possibly caused" by the speed of plaintiff's automobile or by the impact of the other vehicle striking plaintiff's automobile. Defendants subsequently called the investigator as a witness, but the trial court sustained objections to their attempt to elicit testimony that the officer had expressed the opinion plaintiff was speeding at the time of the collision.

Plaintiff testified that after the accident he had pain in his neck and left arm. He was hospitalized under the care of Mayo Clinic physicians who diagnosed a mild concussion and a flexion-extension neck injury. He was discharged 2 days later with notations that his neck pain was much improved, but might become chronic. He was told to return if he had more problems, but never did. Instead, he has had chiropractic treatment on an average of one to two times a week since the accident. At the time of trial he complained of neck pain radiating into his shoulder and arms, occasional headaches over the back of his head, limited neck motion, tingling in the fingers, weakness, and tenseness.

Prior to the accident plaintiff had injured his low back several times and had occasionally had chiropractic treatments since 1961 but did not miss work. He had an oil distributorship from which he earned $27,582 in 1973, $24,820 in 1974, and $22,460 in 1975. With a partner he also purchased a building in 1974 and opened a dance hall in June 1974. He testified that in 1974 and 1975 he had to hire help because he could not perform the work required in the distributorship and that in 1976 when his supplier offered him the chance to buy the distributorship and operate as a jobber rather than a commission agent, he declined because the work made his neck more painful and he did not think the business would generate enough money to allow its purchase if he had to hire others to do the work. Dr. David...