Bush v. Havir

• Decision Date: 01 August 1958
• Docket Number: No. 37411,37411
• Citation: 253 Minn. 318,91 N.W.2d 784
• Parties: Evelyn R. BUSH and George R. Bush, Respondents, v. Andrew HAVIR, Appellant.
• Court: Minnesota Supreme Court

Page 784

91 N.W.2d 784

253 Minn. 318

Evelyn R. BUSH and George R. Bush, Respondents, v. Andrew HAVIR, Appellant.

No. 37411.

Supreme Court of Minnesota.

Aug. 1, 1958.

Syllabus by the Court

1. Contributory negligence involves two essential elements; namely, negligence and proximate cause.

2. The trial court did not err in the instant case in refusing to submit to the jury the issue of contributory negligence of plaintiff driver.

3. The record supports the ruling of the trial court below that the verdicts were not so excessive as to appear to have

been given under the influence of passion and prejudice.

4. A new trial is granted for misconduct of counsel, not as a disciplinary measure, but solely to prevent a miscarriage of justice.

5. Whether there should be a new trial for misconduct of counsel rests almost entirely in the discretion of the trial court, and its action will not be reversed on appeal except for a clear abuse of discretion.

Raymond L. Flader, Murnane & Murnane, Thomas J. Battis, St. Paul, for appellant.

Clifford W. Gardner, St. Paul, for respondents.

NELSON, Justice.

This case involves the claims of two parties for damages arising out of an automobile accident which occurred at approximately 6:30 p.m. on August 15, 1954. One of the claims is brought by Evelyn R. Bush against Andrew Havir for personal injuries. The other is brought by George R. Bush, the husband of Evelyn R. Bush, against Andrew Havir for personal injuries, for medical care and treatment for his wife, for loss of services of his wife and consortium, and for damages to his automobile.

At the time of the accident George R. Bush was driving his Packard passenger automobile, which had been converted into a truck, northerly on Highway No. 65 at a point approximately 3 to 4 miles north of Mora, Minnesota. His wife Evelyn was riding with him in the front seat. Andrew Havir, accompanied by his wife, was driving his Cadillac automobile south on the same highway. The highway at the point of the accident runs in a north and south direction. It is a blacktop road, 20 feet in width from shoulder to shoulder. The area in the vicinity of the accident is free from obstacles that would impair the vision of either of the drivers on the highway. Heavy rains had fallen in the area during the day. The weather had cleared at the time of the accident, although sections of the pavement were still wet. The defendant concedes that the plaintiff was in his proper lane and that he was in the wrong lane when the accident occurred.

At the completion of the trial, the jury returned a verdict for Evelyn R. Bush in the amount of $16,000 and a verdict for George R. Bush in the amount of $6,835. Defendant moved for judgment in favor of the defendant in each action notwithstanding the verdict or in the alternative for a new trial. The trial court denied the motion and the defendant appeals.

We are bound on this appeal, under the familiar rules governing the scope of review where the jury's verdict involves conflicts in evidence, to consider the evidence in the light most favorable to the verdict and to sustain the verdict if it is possible to do so on any reasonably theory of the evidence. Unless the jury's verdict is manifestly and palpably contrary to the evidence, it should not be set aside.

The Havirs had been at their summer home on Mille Lacs Lake and were returning to their home in St. Paul. Defendant, 69 years of age at the time and the owner of the Cadillac, was himself the driver and fully familiar with the highway. The record indicates that just before the accident defendant could see ahead on the highway at least a mile. It appears from the testimony that he knew the weather conditions; that there was nothing mechanically wrong with the Cadillac; and that he conceded that he might have been passing cars prior to the accident at 70 m.p.h.

The plaintiff George R. Bush, as he approached the point of the accident, was on the east side of the highway in the northbound lane going north. He testified that there was southbound traffic which he saw as he approached it; that he was then traveling about 4 feet to the east of the centerline at a speed of about 50 m.p.h.; that nothing had happened within a mile to divert his attention from his driving; that he was looking straight ahead at all times as he traveled the last mile up to the point of collision; that as he traveled the last mile he had not been aware of any vehicle traveling in the opposite direction that appeared to come over to his side of the road. Bush said that the first time he saw defendant's Cadillac it was crosswise in the northbound lane directly ahead of him; that he applied his brakes but he does not know whether he was able to reduce his speed before the impact. He states, however, that he did not turn out of his lane either to the right or the left before the impact occurred. Plaintiff's wife only remembered the car being in front of her and the accident happening.

Morton Goustin, an attorney, and John Nevin, a hotel operator, both of Minneapolis, were returning south over the same highway, Nevin driving Goustin's 1950 Chevrolet automobile. They had come over Highway No. 65 from Lake Vermilion and were moving at a speed of from 60 to 65 m.p.h. shortly before the accident occurred. Their testimony indicates that traffic was heavy, especially ahead of them. Called as witnesses for the plaintiff, they testified that they were passed by a new Cadillac, driven by the defendant, who was driving 'exceedingly fast,' passing them 'with no effort whatever.' Other testimony on the part of Goustin and Nevin is to the effect that defendant's speed immediately prior to the accident as he passed them was between 80 and 85 m.p.h. and that it was increasing. They characterized defendant's position in the driver's seat as hunched over the wheel appearing to be pushing the car; that defendant on several occasions after passing them attempted to pass the car ahead of him by going into the northbound lane, and then pulling back into the southbound lane; that either on the second or third attempt defendant pulled into the wrong lane to pass the car immediately ahead. It appeared immediately that he stepped on the brakes, that his car seemed to buckle, kind of pull up in the air with the brakes on, as indicated by the lights, and coming to somewhat of a stop. As they saw it, he appeared on the east side of the highway without warning and was struck by the plaintiff, who at the time was in his proper lane proceeding north. This resulted in a terrific impact with the defendant swerving down, turning over, and landing in the ditch on the east side of the highway. Goustin and Nevin testified that had the defendant jumped to the west rather than the east, these witnesses would have collided with the defendant. There is testimony that at the time of the collision visibility in the area was excellent. The witnesses Goustin and Nevin brought their car to a prompt stop; Goustin got out of their car and remained at the scene of the accident while Nevin went on to Mora to summon help.

The positions of the respective cars after the accident were described as follows: The front of the Cadillac was facing southwest with the rear end consequently in a northeasterly direction in the ditch on the east side of the highway. It was immediately north of the Packard. The Cadillac was severely damaged on the right side in the center of the two doors which were completely pushed in; glass was broken but not completely shattered; the plaintiffs' Packard of old prewar design (1940) was a heavy car with a strong frame and it ended up facing north. It had been knocked off the highway out of its lane. The front end of it was smashed; its windshield was broken, though not completely shattered.

The defendant testified that as he approached the point of the collision, he passed a car around 400 to 500 feet north of where the accident happened. Concededly this was the car in which Goustin and Nevin were riding. He states that he passed that car at a speed of about 65 m.p.h. After passing, defendant says he returned to the right side of the road and applied the brakes lightly, reducing his speed to about 50 m.p.h. and following a string of cars ahead of him, which were all proceeding south. Havir says that at this time a car, also traveling south, passed him, and cut in ahead of him and that as the car pulled in ahead of him, the traffic ahead slowed down and he had to apply terrific pressure on his brakes to avoid a collision and that as a result the back end of his car swung around and he lost control of his car. He says that his car then turned sideways and went over on the left-hand side of the road at which time the plaintiffs' car, approaching, was about 100 feet away and that thus the collision resulted. It does not appear from the record that Goustin and Nevin, passed shortly before the collision, saw any other car go by them or any other car pull in ahead of Havir. It appears from the record that Havir had given a statement to an insurance adjuster following the accident giving his version of what took place on the day of the accident. The record indicates that counsel for the defendant asked the defendant the following questions:

'Q. Mr. Havir, counsel asked you about the report you had made and it is indicated you made it a couple of months after the accident; I will show you an instrument consisting of four pages numbered in the right hand corner 1, 2, 3, 4, and on the left hand corner certain initials and on the last page a name, and I ask you if you recognize that piece of paper? Don't tell what it is, but do you recognize that piece of paper? A. Yes.

'Q. And what is that? Don't tell us what it contains, but just what it is? A. It is a copy that was made By one of the men from the insurance company.

'Q. Just a minute, does that report bear a date? A. Yes.

'Q. And does that report contain your complete...