Carlson v. Fredsall
| Decision Date | 27 May 1949 |
| Docket Number | No. 34676.,No. 34663.,34663.,34676. |
| Citation | 228 Minn. 461,37 N.W.2d 744 |
| Parties | CARLSON v. FREDSALL et al. (two cases). |
| Court | Minnesota Supreme Court |
Appeal from District Court, Hennepin County; John A. Weeks, Judge.
Action by Roy D. Carlson against Robert A. Fredsall, John Herseth, Lloyd A. Worthley, and the Minneapolis Street Railway Company to recover for injuries sustained when plaintiff was struck by an automobile owned by Robert A. Fredsall, and driven by John Herseth, when a streetcar belonging to the Minneapolis Street Railway Company and operated by Lloyd A. Worthley caused the automobile to run up onto curb. From an order denying alternative motions for judgment or a new trial, Robert A. Fredsall and Lloyd A. Worthley and the Minneapolis Street Railway Company separately appeal.
Reversed and new trial granted.
John F. Dulebohn and Lawrence O. Larson, Minneapolis, for appellants Worthley and Street Railway Co.
Thomas H. McMeekin, Minneapolis (John Ott, Minneapolis, of counsel), for Roy D. Carlson.
R. T. Lilly and Orr, Stark & Kidder, St. Paul, for Robert A. Fredsall.
Johnson, Sands & Brumfield and Austin D. Norton, Minneapolis, for John Herseth.
This action to recover for personal injuries was originally brought against defendants Robert A. Fredsall and John Herseth. Thereafter, the complaint was amended so as to include as defendants Minneapolis Street Railway Company and Lloyd A. Worthley. The jury returned a verdict in favor of plaintiff against all defendants. Defendants Fredsall and the Minneapolis Street Railway Company and Worthley have appealed separately from an order denying their respective alternative motions for judgment or a new trial. The appeals have been consolidated here. Defendant Herseth has not appealed.
Many of the facts are not in dispute. Bryant avenue south in the city of Minneapolis runs in a north-south direction. From curb to curb it is 36 feet wide. In the center of the street there are two streetcar tracks. West Thirty-eighth street runs in an east-west direction, intersecting Bryant avenue south at approximately right angles. Streetcar tracks branch off from the main tracks on Bryant avenue so as to form a Y running into Thirty-eighth street on the west side of the intersection, which tracks run for approximately 140 feet west of the intersection. The Y is used for turning cars that go no farther. To the west of the intersection, Thirty-eighth street is 37 feet wide for a distance of approximately 140 feet, or for about the same distance as the tracks forming the Y run west along Thirty-eighth street. To the east of the intersection, Thirty-eighth street is 32 feet wide, and west of the tracks forming the Y it is likewise approximately the same width. The north side of Thirty-eighth street, on both sides of the intersection, runs in a straight line. Consequently, the difference in width of Thirty-eighth street is all reflected on the south side of the street, where the curb line on the east side of Bryant avenue extends five feet farther north than it does on the west side of Bryant avenue. Thirty-eighth street is a through street, having stop signs on the north and south sides of the intersection on Bryant avenue. Both streets at and for some distance in both directions from the intersection are substantially level.
Buses owned by a subsidiary of the Minneapolis Street Railway Company travel on Thirty-eighth street. On December 21, 1945, about 12:10 a. m., plaintiff was a passenger on one of these westbound buses. The bus stopped on the northeast corner of the intersection, and plaintiff alighted from the front exit of the bus, passed around the front end of the bus, and crossed the street to the southeast corner of the intersection, where he intended to board a northbound streetcar. Shortly before the bus had stopped, Lloyd A. Worthley, operating a southbound streetcar along Bryant avenue, had come to a full stop north of the intersection for the purpose of taking on some passengers and for the purpose of complying with the stop sign. He then proceeded to the curb line on the north side of the intersection, where he could obtain an unobstructed view of Thirty-eighth street both east and west. His view to the west was obstructed by some large trees until he reached the curb line. He observed a car approaching some distance to the west. He estimated the distance to be about 250 feet. The testimony of the witnesses differs radically as to what he then did. Worthley claims that he went no farther. Other witnesses claim that he proceeded into the intersection and had gone about one-third to one-half or more of the distance through the intersection when John Herseth, driving the car owned by Robert A. Fredsall, entered the intersection. It is not disputed that Herseth approaching on Thirty-eighth from the west swung his automobile to the right, passed in front of the streetcar, ran up onto the curb on the southeast corner of the intersection, and struck plaintiff, who was then standing either on the sidewalk or near it. The negligence of Herseth is not seriously disputed.
Worthley testified that when he first saw the automobile driven by Herseth it appeared to be traveling fast. The speed of the Herseth car was variously estimated to be from 20 to 45 miles per hour. None of the witnesses claim that the streetcar traveled into the intersection at an excessive rate of speed. Most of them claim that the pavement was somewhat covered with light snow and that the edge was slippery. Herseth contends that the pavement was dry. He did not slacken his pace as he approached and entered the intersection; instead, it was admitted, he increased his speed as he passed or was about to pass in front of the streetcar. It is undisputed that the automobile and streetcar did not touch each other, and it is likewise conceded that, regardless of where the streetcar was when the automobile passed in front of it, the streetcar had come to a stop by that time.
The automobile driven by Herseth was a 1935 Oldsmobile sedan purchased in 1944 by Robert A. Fredsall from his father while Robert was in the navy. On December 19, 1945, Robert, who had just been released from active duty, loaned the automobile to his brother, Roger Fredsall, who was then a student at the University of Minnesota. Roger was president of and active in the affairs of Psi Omega dental fraternity. At the election of officers in December 1945, Herseth was elected to succeed Roger as president. On the day in question, Roger gave Herseth permission to use his brother's automobile to attend to some fraternity business having to do with negotiations pending for a new lease between the fraternity and the owner of the fraternity house.
December 19 was the first time Robert had loaned the car to Roger. Robert was not acquainted with Herseth. Originally, the automobile was loaned to Roger by Robert for the purpose of picking up their sister, who was to arrive on the train Thursday morning, December 20. She did not arrive, so on Thursday Roger called Robert's home on the telephone and talked to Robert's wife, who gave him permission to retain the car until Friday. Robert had no knowledge of the fact that Roger intended to permit anyone else to use the car besides himself.
On the appeal of the Minneapolis Street Railway Company, two questions are presented for determination: (1) Does the evidence justify submission to the jury of the question of this defendant's negligence and its proximate cause; and (2) was there such prejudicial error committed in the rejection of evidence as to require a new trial?
1. The first proposition relates to the question of causation. It is the contention of the streetcar company that its motorman was not negligent in any respect and that, even if he could be charged with negligence in moving into the intersection, such negligence was not the proximate cause of plaintiff's injuries. It further contends that the negligence of Herseth was an intervening cause insulating any negligence of the motorman which may have existed prior to the negligence of Herseth.
In passing upon the liability of defendants, we must view the evidence in the light most favorable to plaintiff. So doing, the jury could find that Worthley stopped his streetcar north of the intersection for the purpose of taking on passengers and to observe the requirements of the stop sign and that he then moved to the curb line on the north side of the intersection for the purpose of observing traffic on Thirty-eighth street; that he looked to the west and saw the Herseth car coming toward him at a fast rate of speed; that he started into the intersection when Herseth was in close proximity to the west side of the intersection and that when he realized that he could not safely pass in front of the automobile he brought his streetcar to a sudden stop. According to their testimony, the occupants of the streetcar agree that the car did come to an abrupt stop. The testimony of the witnesses varies greatly as to how far the streetcar had traveled into the intersection when this sudden stop occurred. The jury could find that when Herseth realized the impending collision if both automobile and streetcar continued forward he swung his automobile to the right in order to avoid a collision and that as a result thereof he ran up onto the curb on the southeast corner of the intersection and struck plaintiff.
There is no dispute that the south curb line on the east side of the intersection is five feet farther north than it is on the west side of the intersection. If the Herseth automobile was so close to the intersection that a collision was imminent if the streetcar proceeded into the intersection, it was the duty of the streetcar to yield the right of way. If the motorman failed to do so and the sudden movement of the streetcar into the intersection caused the automobile to veer to the right in order to avoid a collision and as a result...
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