Carson v. Turrish
| Decision Date | 12 July 1918 |
| Docket Number | 20,912,20,913 |
| Citation | 168 N.W. 349,140 Minn. 445 |
| Parties | GEORGE H. CARSON v. HENRY C. TURRISH; LAURA VIVIAN CARSON v. SAME |
| Court | Minnesota Supreme Court |
Two actions in the district court for St. Louis county, one by the wife to recover $15,000 for injuries received in a collision with an automobile belonging to defendant, and the other by the husband to recover $5,000 for injuries to himself, $1,000 for the injuries sustained by the wife, and $275 for medical attendance, loss of services and companionship of his wife. As counterclaim in each action defendant claimed $1,400 for damages to his automobile. The cases were tried together before Fesler, J., and a jury which returned verdicts for $8,125 and $2,000, respectively. From orders denying his motions for a new trial, defendant appealed. Affirmed.
Negligence not imputable to guests of driver of automobile -- contributory negligence.
1. In an action for damages received in a collision at a street crossing between an auto in which the plaintiffs were riding as guests and an auto of the defendant, the evidence sustains the jury's finding that the chauffeur of the defendant was negligent. The negligence, if any, of the driver of the other car was not imputable to the plaintiffs; and the finding of the jury against the defendant upon the issue of contributory negligence is sustained by the evidence.
Rights of vehicles in public street -- duty of drivers -- evidence of custom.
2. The relative rights of vehicles in a street are in general equal and reciprocal, except as fixed by positive law, and the driver of each is under obligation to act with due regard to the rights of others. The court did not err in so charging the jury relative to the rights of the autos at the crossing nor did it err in refusing the defendant's offer to prove a general custom over the country and in the city where the collision occurred that at street intersections traffic on main thorougfares has the right of way and traffic coming onto such thoroughfares from side streets must exercise special care and caution to avoid collisions.
Evidence of expert as to wheel tracks admissible.
3. The court did not err in permitting a witness for whose testimony a foundation was laid to testify as an expert on rebuttal as to wheel tracks on the pavement at the place of the collision the morning after and his opinion of the movements of the car which they indicated.
Burden of proving contributory negligence -- presumption of due care.
4. The court gave an instruction, requested by the plaintiffs, to the effect that the burden of proving contributory negligence was upon the defendant and that the presumption was that the plaintiffs were in the exercise of due care. The statement as to the presumption is disapproved; but the giving of it was not prejudicial and should not result in a new trial.
Damages for permanent injury -- charge to jury.
5. Damages cannot be awarded as for a permanent injury unless there is reasonable certainty that it will be permanent. A charge to the effect that the plaintiff is entitled to damages compensating her for pain and suffering up to the time of the trial "and for any pain and suffering which under the evidence you believe she will sustain in the future as the result of the accident" correctly states the rule.
Damages not excessive.
6. The verdicts are not excessive.
Misconduct of counsel.
7. There was no misconduct of counsel calling for a new trial.
Washburn, Bailey & Mitchell, for appellant.
Benjamin M. Goldberg, Harry E. Boyle and Jesse L. Cohen, for respondents.
Two actions for damages for personal injuries received in an automobile collision, in one of which Laura V. Carson was the plaintiff, and in the other her husband, George H. Carson, both against Henry C. Turrish, were tried together. There were verdicts for the plaintiffs and the defendant appeals from the orders denying his motions for a new trial.
1. The plaintiffs were riding in an automobile in Duluth as guests of a Mr. and Mrs. Beck and were injured in a collision with the auto of the defendant driven by his chauffeur. The defendant and his family had attended the theatre, he and his wife had been driven home, and the chauffeur was returning alone for some of the family who had stopped at the club. He was going westerly on East Fourth street. The car in which the plaintiffs were riding was going north on Twenty-first avenue east which intersects Fourth street at right angles. Mrs. Beck was driving. The two cars came into collision at the crossing near the northeasterly corner. The Beck car was struck near the windshield on the right side. It was at 11.15 p.m. of October 14, 1916, and the night was clear. The claim of the plaintiffs is that the defendant's chauffeur was driving at a negligent rate of speed and that his negligence was the proximate cause of the injury. The evidence satisfactorily sustains the finding of the jury to that effect and a recital of it would serve no useful purpose.
The plaintiffs were the guests of the Becks, and the negligence of Mrs. Beck, if any, was not imputable to them, but their personal negligence contributing to the injury would prevent a recovery. Christison v. St. Paul City Ry. Co. 138 Minn. 456, 165 N.W. 273; McDonald v. Mesaba Ry. Co. 137 Minn. 275, 163 N.W. 298, and cases cited. The question of the contributory negligence of the plaintiff was submitted to the jury and the verdicts for the plaintiffs necessarily include a finding for the plaintiffs on this issue. There is no fault to be found with it and the evidence is not worth while discussing.
2. The defendant predicates error upon the charge of the court as follows:
And in connection with this it is urged that it was error to sustain an objection to the following offer of proof:
These two matters are conveniently argued together by counsel and we consider them together.
It was in evidence that Fourth street is a so-called main thoroughfare and that Twenty-first avenue east is a so-called side street. They are in a residential district. Fourth street is well paved and carries the double tracks of the street railway. Twenty-first avenue was recently asphalted, comes to Fourth street from the south on an upgrade, and leaves it on an upgrade as it goes north. They are much used streets but there is no congestion of traffic on them.
The charge as to the relative rights of vehicles is in general accord with our decisions. Dunnell, Minn. Dig. & 1916 Supp. § 4166, and cases cited. The streets belong to the public for purposes of travel. The court has been averse to giving by its decisions an arbitrary right or a priority in right of use to one over another. It has applied the general principle stated to the rights of the public and a street railway, due regard being had to the character of the railway use. Dunnell, Minn. Dig. & 1916 Supp. § 9013, and cases cited. All users, pedestrians, drivers of horse-drawn vehicles, chauffeurs and motormen, must respect the reciprocal rights of others, and must exercise due care to avoid injuring them; and the factors to be considered in measuring conduct are many.
The propriety of the proffered proof of custom has had careful attention. That on an issue of negligence a known custom or usage may in a proper case be proved as bearing upon negligence or the absence of it is not to be questioned. Dunnell, Minn. Dig. & 1916 Supp. §§ 7049, 7050. So in O'Neil v. Potts, 130 Minn. 353, 153 N.W. 856, it was held proper to show a practice among drivers of autos to extend the hand to the side before stopping as a signal to cars following. The question presented by the offer of proof is different. It was sought to show that main street traffic has a right of way over side street traffic, something more than an equal right at the crossing, and that the side street traffic is bound to exercise "special care and caution to avoid collisions with traffic on main thoroughfares." In effect it was sought to establish something approximating a rule or law of the road, though we do not understand counsel to claim that the custom for which he contends gives an arbitrary right, though a substantial advantage. We think the ruling was correct.
Indeed it is the rule in many jurisdictions that the vehicle first at the crossing without negligence has the right of way across. Elgin Dairy Co. v. Shepherd, 183 Ind. 466 108 N.E. 234, 109 N.E. 353; Mayer v. Mellette (Ind. App.) 114 N.E. 241; New Jersey Elec. Ry. Co. v. Miller, 59 N.J. Law, 423, 36 A. 885, 39 A. 645; Earle v. Cons. Tr. Co. 64 N.J. Law, 573, 46 A. 613; Rabinowitz v. Hawthorne, 89 N.J. Law, 308, 98 A. 315; Knox v. New Jersey St. Ry. Co. 70 N.J. Law, 347, 57 A. 423, 1 Ann. Cas. 164; McClung v. Pennsylvania T.C. Co. 252 Pa. St. 478, 97 A. 694; Yuill v. Berryman, 94 Wash. 458, 162 P. 513; Buhrens v. Dry Dock E.B. & B.R. Co. 53 Hun, 571, affirmed in 125 N.Y. 702, 26...
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