Dehen v. Berning
| Decision Date | 24 December 1936 |
| Docket Number | 30,932 |
| Citation | 270 N.W. 602,198 Minn. 522 |
| Parties | DAVID P. DEHEN v. OSCAR A. BERNING |
| Court | Minnesota Supreme Court |
Action in the district court for Wright county to recover for injuries sustained by plaintiff while riding as a guest in defendant's auto. The case was tried before Leonard Keyes, Judge, and a jury. There was a verdict for defendant. Plaintiff appealed from the judgment. Affirmed.
Automobile -- collision between meeting vehicles -- injury to guest -- negligence of driver -- question for jury.
1. Record establishes that question of defendant's negligence was a jury issue.
Appeal and error -- review -- instructions -- necessity of objection or exception.
2. Court's charge as to negligence of a defendant confronted with an emergency was not as complete as it should have been. But competent and informed counsel did not see fit to request any instruction on that point and, after hearing court's charge, made no suggestion that there was any error omission, or inadvertence in the charge as given; nor was any exception taken thereto. The given charge, as far as it went was not open to any serious objection. Held that in circumstances here appearing no reversible error was committed by the court.
Right of counsel to call attention to omission or inadvertence in a charge, or to take exception thereto, imposes a duty upon him to exercise such right.
A litigant cannot tacitly consent to a charge and later, when disappointed by the verdict, obtain a new trial for mere omission or inadvertence in language omitted or chosen by the court in giving such charge.
New trial -- admission of evidence.
3. Admission of evidence as to injury to defendant's leg in collision causing plaintiff's hurt held not so prejudicial as to require new trial.
Trial -- instructions -- request covered by charge.
4. Court charged that violation of statutory provisions, duly read to jury, was negligence. Thereby necessity for any further charge as to distinction between common-law negligence and violation of statutory duty was unnecessary.
Appeal and error -- review -- instructions -- necessity of objection or exception.
5. There was no reversible error in the court's definition of "proximate cause," and, in the absence of any objection or exception thereto at the time of the trial, plaintiff cannot now raise that point.
Tautges, Eichelzer & Tautges and S. A. Johnson, for appellant.
William H. Freeman and Thomas P. Welch, for respondent.
Plaintiff, a guest passenger in defendant's car, suffered injuries as a result of an automobile collision. In his action to recover damages therefor he met with an adverse verdict, and he appeals from the judgment entered pursuant thereto.
The evidence would justify a jury in finding the following facts: State trunk highway No. 169 (formerly No. 18) in the vicinity of the accident is paved 20 feet in width with 10-foot shoulders flush with the pavement, graveled, firm, and suitable for driving in case of need. At a point about 400 feet south of a crossroad near Zimmerman there were three automobiles which became involved in this accident. Plaintiff and defendant, including two other men, were traveling northerly in the latter's car, he being at the wheel, on a fishing trip. Peck was driving southerly. Each was approaching the other in his own proper traffic lane at a rate of about 45 to 50 miles an hour. Weather conditions were clear, the road open and dry, and visibility perfect. Immediately behind the Peck car, a distance of 25 to 50 feet and going in the same direction, was one driven by Mr. Ingram. This car bore a Michigan license number. We shall refer to the car driven by Mr. Peck as the Peck car, and that driven by Mr. Ingram as the Michigan car. When these approaching cars (Peck's and defendant's) were within about 200 feet of each other, the Michigan car suddenly swung to its left for the obvious purpose of passing the Peck car. In doing so this car swung so far to the left that the rear wheel was off the pavement and "skipped along" so as to throw sand off the shoulder. It was proceeding at a very rapid rate, estimated at about 60 miles per hour. Defendant testified that just as they had made the curve immediately to the south of the place of accident he observed these cars approaching, And further, Toward that opening is where defendant went.
The witness Butler describing the place of the accident said in respect of skid marks and tire tracks: The witness was then asked to indicate upon a map the location of the tracks made by the Michigan car so as to illustrate just what he meant by his testimony. This he did and marked with a lead pencil the course taken and the place where the two cars met. From this plat as so marked it is clear that the collision took place at or near the center of the pavement.
For plaintiff it is claimed that defendant's conduct was so obviously negligent that the jury went wrong in exonerating him. For defendant if is urged that he was confronted with a sudden emergency, created by the driver of the Michigan car and by him alone, and that as such, the court having instructed the jury in respect of that rule, the verdict is unassailable. There are many alleged errors discussed by counsel: Those deemed essential to decision will be discussed later. But first we must direct our attention to the issue of defendant's negligence. (Contributory negligence is wholly absent.)
1. Counsel for both parties seem to get considerable comfort from, and both cite and rely upon, Cosgrove v. McGonagle, 196 Minn. 6, 264 N.W. 134. While the facts there appearing are in some respects similar to those involved here, yet there are many very clear distinctions if one takes the time to read them. In the cited case defendant applied the brakes and swung to his right seeking to escape the oncoming danger of the approaching car suddenly entering his lane of traffic and by so doing landed in the ditch to his right. But there, as here, a collision between the two cars resulted, with serious injuries to the occupants of the cars involved. Here defendant did not apply his brakes until momentarily before the impact. Instead of swinging to his right he swung slightly to his left so that when the collision did occur the cars were, as we have said, virtually in the center of the pavement.
It is clear that the sudden appearance of the Michigan car upon defendant's lane of traffic created an immediate and genuine traffic emergency. If he were to swing to his right and go into the ditch, in view of the very brief time in which this decision must be made and executed, what assurance had he that he would not smash head on into the Michigan car facing him in his own lane of traffic and headed, for the moment at least, in the same general direction in which plaintiff claims defendant should have gone? How could he tell that the oncoming car would so suddenly swing back again as to head for its proper side of the pavement? When it swung onto the shoulder of the road in front of defendant's car and at an obviously reckless speed, what was defendant to do? It is easy for counsel to sit back and look at the record and conjure things that might be done. The question is what could or should anyone do if and when confronted with such peril as here confronted defendant. He and his friends, all of whom were his passengers and guests were facing great danger. Their lives as well as his own were in imminent peril. We cannot assume as a matter of law that he thus needlessly or improvidently exposed his and their lives to be sacrificed. He may not have chosen what we now think was the best course. Time did not permit him to weigh and consider all the facts and results then in the making that we now have before us. There was then no opportunity to speculate and to devise ways and means of avoiding a collision now so plainly available to resourceful and experienced counsel. They are viewing the situation retrospectively. These cars were approaching at a rate which would bring them into physical contact in less than one and one-half seconds. The Michigan car traveling at 60 miles per hour would cover approximately 90 feet per second. If defendant's car was traveling at 50 miles per hour the rate would be approximately 75...
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