Cohen v. Silverman

• Decision Date: 17 November 1922
• Docket Number: No. 23025.,23025.
• Citation: 153 Minn. 391,190 N.W. 795
• Parties: COHEN v. SILVERMAN et al.
• Court: Minnesota Supreme Court

153 Minn. 391

190 N.W. 795

COHEN

v.SILVERMAN et al.

No. 23025.

Supreme Court of Minnesota.

Nov. 17, 1922.

Appeal from District Court, Hennepin County; W. E. Hale, Judge.

Action by Abe Cohen against I. Silverman and another. Judgment for plaintiff against named defendant, and he appeals. Affirmed.

Syllabus by the Court

There is evidence that defendant Silverman was negligent at a street intersection, in not passing to the right of the center of the intersection in making a left turn, and in passing directly in front of defendant Beck's truck, which approached from his right and had the right of way.

There is evidence also that Silverman's negligence was a proximate cause of a collision of his car with the truck.

There is evidence that the collision occurred after 5:30 p. m. on November 26th. The court will take judicial notice that the sun set at 4:36 p. m. on that day. The truck carried no light. There was evidence of negligence on the part of the truck driver. It was error to direct a verdict for the defendant Beck at the close of plaintiff's case.

Defendant Silverman cannot complain of the error. Generally one joint tort-feasor cannot complain of the erroneous dismissal of the action as to another. There are no circumstances in this case to warrant a relaxation of the rule. The court made it clear to the jury that, on the evidence as it was submitted to them, they might find that the truck driver was negligent and that Silverman was not.

Plaintiff asked leave to reopen the case as to defendant Beck. Defendant Silverman objected. He cannot now complain that Beck is not in the case. Hoke, Krause & Faegre, of Minneapolis, for appellant.

N. Rivkin and George R. Smith, both of Minneapolis, for respondent.

HALLAM, J.

Plaintiff was riding as a gratuitous passenger in an automobile driven by defendant Silverman. The car came into collision with a truck of defendant Beck. In the collision plaintiff was injured and sued both Silverman and Beck for damages. At the conclusion of plaintiff's case the court directed a verdict in favor of defendant Beck. The case proceeded against defendant Silverman and the jury found a verdict against him. Defendant Silverman appeals.

[1] 1. Defendant Silverman contends that the evidence is insufficient to warrant a finding that he was negligent. We think the evidence is sufficient.

Silverman was soing north on Third street. The Beck truck was going south on the same street. In was on November 26, and as plaintiff claims, after dark. Silverman undertook to make a left turn on to Sixth Avenue North. It was while making this turn that the collision occurred. The record is somewhat vague as to the precise place of the collision, partly by reason of the fact that locations were sometimes indicated by the witnesses by pointing to a map. The jury could see the places indicated but they were not in all cases marked on the map. The record does, however, show plaintiff's testimony, that Silverman made a ‘short turn,’ and, that he ‘didn't go out into the center of Sixth street before he turned,’ and again that he began to turn ‘to the left of the center of Third street.’ After the collision, Silverman's car was against the curb at the southwest corner of the intersection and the truck was partially on the sidewalk near by. The evidence is sufficient to sustain a finding that Silverman's car did not pass to the right of the center of the intersection, as required by General Statutes 1913, § 2634, as amended chapter 472, Laws 1921, § 6, p. 785. If Silverman failed to pass to the right of the center of the intersection as this statute requires, he was negligent as a matter of law. Schaar v. Conforth, 128 Minn. 460, 151 N. W. 275.

There is other evidence of negligence. It appears that the Beck truck had the right of way. Holman v. Ivins, 150 Minn. 285, 184 N. W. 1026. The Beck truck was in plain sight, and approaching slowly, yet Silverman passed directly in front of the truck and said he did not see it. He did not yield the right of way and could not have been keeping a careful lookout for other vehicles. The Beck truck was without lights but this did not relieve Silverman of his duty to exercise care.

[2] 2. If Silverman was negligent there can be but little question that his negligence was a contributing cause of the collision. Blindly cutting a corner in making a left turn at a street intersection, when there is a nearby car approaching from the right, is without much doubt a proximate cause of a collision that follows. The want of lights on the truck may have been a contributing cause of the collision but we cannot say that it was the sole cause.

[3] 3. Defendant Silverman contends that the evidence showed that the driver of the truck was negligent and that it was error prejudicial to Silverman to direct a verdict in his favor. It seems clear that in this the court did err. We need not determine whether it is ever proper to direct a verdict at that stage of the case. It is admitted that the truck...