Daugharty v. Anderson
| Decision Date | 16 December 1966 |
| Docket Number | No. 39970,39970 |
| Citation | 275 Minn. 371,147 N.W.2d 378 |
| Parties | Florence E. DAUGHARTY, Respondent, v. Essen Erick ANDERSON, Appellant. |
| Court | Minnesota Supreme Court |
Syllabus by the Court
Where it appears from the evidence that plaintiff was guilty of contributory negligence as a matter of law and that the court should have so instructed the jury; where the evidence as to the proximate cause of the collision is unsatisfactory and defendant's wife, who should have been able to furnish critical testimony on that point, was not called as a witness, it is held under the record here that a new trial should be granted in the interests of justice on all of the issues.
Cann & Schmidt, Bemidji, for appellant.
Olson, Kief & Kalar, Bemidji, for respondent.
Appeal from an order of the district court denying defendant's motion for judgment notwithstanding the verdict or a new trial. Plaintiff agrees that the statement contained in defendant's brief fairly represents the facts except for those facts essential to plaintiff's argument which are not contained therein and which have been incorporated in her argument.
Plaintiff was injured on September 23, 1961, in a collision between a 1961 Ford Falcon which she was driving and a 1955 Chevrolet owned and operated by defendant about 4 miles southwest of Gonvick, Minnesota. The accident occurred at about 9:30 a.m. on a dry day as defendant drove his car westerly on a 25-foot-wide county road which was dry with a surface of loose rocks and coarse gravel. Plaintiff was driving the Ford, owned by Otto Johnson, north on an intersecting road. Both parties were familiar with the intersection, having traveled over it many times. At the time of the accident, there was a stubble field or hayfield in the southeast corner of the intersection which had been cropped that summer. No claim was made of obstruction to vision in the southeast corner of the intersection although there was a tree and some bushes along the right side of the road on which plaintiff was traveling north.
There was a ridge starting about 350 feet east of the intersection on the east-west road. It starts rising beyond the 350 feet and the maximum height of the ridge above the level of the east-west road was variously estimated at 3 feet and at 3 feet with an additional 2 1/2 feet of grass. Plaintiff, when questioned about the height of the ridge, said that she did not know except that it was more than half the height of a car. She testified that when she was 100 feet and also 200 feet back from the intersection on the north-south road, she could see 350 feet east on the east-west road. She said that while she was driving north she stopped her car about 1,000 feet back from the intersection to talk to an acquaintance; that she then continued her driving at from 30 to 40 miles per hour until she was about 100 feet south of the intersection, when she reduced her speed to between 25 and 30 miles per hour; and that as she approached the intersection she applied her brakes and then slowed to 10 miles per hour when she entered the intersection. When she was about 100 feet from the intersection she made observations to the right and continued such observations until she was 'a couple of lengths of the car' from it. She said she did not see any car approaching until defendant struck her, although she looked to the right 'good' before she looked to the left.
Plaintiff also testified that she saw black and white cows in a field on the north side of the east-west road. Defendant's car had a black body with a white top.
On the day of the accident defendant, then about age 73, was driving his car, according to his deposition testimony, in a westerly direction at a speed of about 40 miles per hour as he came from Gonvick. When he was about a quarter of a mile from the intersection involved, he looked to the left but saw no traffic approaching on the north-south road traveled by the plaintiff. He claimed no obstruction to his vision on either side of the east-west road but he did notice some activity on the right side--a combine in the field which he thought was coming across. He continued watching the combine until he was satisfied that it was not on the road and then looked ahead again. He said that his wife called to him that a car was coming from the south; that he could not say how long it was from the time he looked ahead again down the road until his wife warned him of the approaching car except that 'it might have been a little bit, * * *; no, I am pretty sure it was not'; and that he put on the brakes and the collision occurred. Defendant further said that he did not think he was going 40 miles per hour when he put on his brakes but that 'I didn't see her car until I hit her.'
Defendant testified that at the time of the impact he was traveling on his right side of the road; that he did not blow his horn before the accident; and that the front end of his car hit the right side of plaintiff's vehicle. There was testimony that after the collision both cars were facing east--the Ford in the ditch 18 feet north of defendant's car, which was about 31 feet from the point of impact in the intersection.
The case was tried before a jury, which returned a verdict for plaintiff in the sum of $10,000. Thereafter, defendant moved for judgment notwithstanding the verdict on the ground that plaintiff was contributorily negligent as a matter of law; if that motion was denied, then for an order granting defendant a new trial on the grounds that the verdict and damages were not justified by the evidence; that the verdict was contrary to law; and for errors of law occurring at the trial with respect to certain instructions to the jury. If that motion was denied, defendant sought an order granting a new trial on the issue of...
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