Carlson v. F. A. Martoccio Co.

• Decision Date: 14 February 1930
• Docket Number: No. 27605.,27605.
• Citation: 229 N.W. 341,179 Minn. 332
• Parties: CARLSON v. F. A. MARTOCCIO CO.
• Court: Minnesota Supreme Court

229 N.W. 341

179 Minn. 332

CARLSON v. F. A. MARTOCCIO CO.

No. 27605.

Supreme Court of Minnesota.

February 14, 1930.

Appeal from District Court, Hennepin County; Mathias Baldwin, Judge.

Action by Ebba M. Carlson, administratrix of Fritz G. Carlson, deceased, against F. A. Martoccio Company. From an order denying its alternative motion for judgment notwithstanding verdict for plaintiff or for a new trial, defendant appeals. Affirmed.

Maugridge S. Robb, of Minneapolis, for appellant.

Fletcher, Timerman & Vennum and Donald C. Rogers, all of Minneapolis, for respondent.

HILTON, J.

Defendant, a corporation, appeals from an order denying its alternative motion for judgment notwithstanding the verdict or for a new trial.

1. Fritz G. Carlson at 10:30 a. m. on June 3, 1927, while riding a bicycle on a street intersection in Minneapolis, was struck by an automobile truck owned by defendant and driven by one of its employees. Carlson died shortly thereafter as a result of the collision. The day was misty, and the pavement was wet.

The main questions involved in the case are: Was the defendant guilty of negligence, and was deceased guilty of contributory negligence, which was the proximate cause of the accident? If there was sufficient evidence to make questions of fact for the jury on these propositions, then its verdict must stand, unless there were reversible errors by the court on the admission or rejection of evidence properly excepted to, or in its charge. The burden of establishing the negligence of defendant was on plaintiff. The burden of proving contributory negligence of the deceased was upon defendant. It is only in the clearest of cases when the facts are undisputed, and it is plain that all reasonable persons could draw but one conclusion, that the question of contributory negligence becomes one of law. Coffman v. Kummer et al. (filed Jan. 3, 1930) 228 N. W. 751.

2. The locus of the accident was at the intersection of Seventh Street North and First Avenue North (hereinafter referred to as Seventh street and First avenue). The former runs practically north and south (but jogs to the east about 20 feet after leaving the intersection at the north). The latter runs practically east and west. A third street, Glenwood avenue (formerly called Western avenue), comes into the intersection at the northwest thereof, at approximately an angle of 45 degrees. The street and avenues are each 50 feet wide. This intersection is in a business section of Minneapolis (one of the busiest corners in the loop district), and is one at which the traffic is controlled by a traffic officer and was at the time of the accident. Cars were parked on both sides of Seventh street, north of the intersection. There were double street car tracks on First avenue crossing the intersection and also double street car tracks on Seventh street, coming from south of the intersection, then running to its center and turning northwesterly, proceeding out Glenwood avenue. The traffic officer controlled the traffic by hand signals and the blowing of a whistle. The first hand signal indicated the stopping of a car that was two car lengths from the intersection. This hand signal was shortly followed by a whistle signal, at the giving of which the officer turned one quarter round. Here he faced toward Glenwood avenue and Seventh street, north of the intersection. The last hand signal was for the stopped cars on First avenue to advance.

Carlson, a man 43 years of age, was a janitor in the Metropolitan National Bank. He was proceeding on a bicycle in a northerly direction on Seventh street and into the intersection. The traffic was with him. When the whistle was blown, he was 3 feet north of the First avenue curb line and had the right of way. The witness Roberts saw him in that location at that time. This evidence is not directly disputed. Facing west on First avenue back of the east line of the intersection with Seventh street, there were three stopped cars. Defendant's car (a ¾ ton Chevrolet truck) was next to the north curb line. By the side of the truck to its left, and six inches ahead of it, was a sedan (driver not known and not available as a witness), and back of both of these was a Ford owned and occupied by the witness Roberts.

At the time of the last hand signal opening traffic on First avenue, the three cars above referred to proceeded westerly. The driver of the sedan slackened his speed, swerved slightly to the left, stopped, and allowed Carlson (who had proceeded northerly in the intersection) to pass in front of him. Roberts also slackened his speed. Defendant's driver did not slow up, but proceeded attaining a speed of at least 10 miles per hour at the time the accident occurred 25 feet within the intersection — probably too fast under the circumstances. If attentive, he would have noticed that the sedan was slowing up. He testified that he did not see Carlson approaching. He said he looked to the left before starting, but could only see a portion of the intersection, because his view was obstructed by the sedan at his left, and also because of the cab of the truck. His obstructed view prevented him from seeing Carlson in the intersection. He stated he did not see Carlson when he (Carlson) passed in front of the sedan and did not see him until just before striking him. The officer (witness for defendant) testified that he did not see Carlson in the intersection at the...