Dickey v. Haes
| Decision Date | 25 October 1935 |
| Docket Number | No. 30428.,30428. |
| Citation | 262 N.W. 869,195 Minn. 292 |
| Parties | DICKEY v. HAES. |
| Court | Minnesota Supreme Court |
Appeal from District Court, Blue Earth County; Harry A. Johnson, Judge.
Action by Arthur Dickey, as special administrator of the estate of Marcella Anne Dickey, deceased, against Julius E. Haes. From an order denying defendant's alternative motion for judgment or a new trial after verdict in favor of plaintiff, defendant appeals.
Order affirmed.
Sexton, Mordaunt, Kennedy & Carroll, of St. Paul, for appellant.
H. L. & J. W. Schmitt and Charlotte Farrish, all of Mankato, for respondent.
Defendant appeals from an order denying his alternative motion for judgment or a new trial after verdict in favor of plaintiff.
Plaintiff, as special administrator of the estate of Marcella Anne Dickey, his daughter, brought the action to recover damages for her death, claimed to have been caused by the negligence of the defendant in operating his automobile on a public highway. The deceased was a child within a few days of seven years of age. The accident happened on July 24, 1934, in the daytime, as the child was crossing a highway.
1. The negligence of the defendant is so well established by the evidence that it is not necessary to here set out the particulars thereof.
2. There is no claim that the decedent was guilty of contributory negligence, but it is claimed that the mother was guilty of such negligence. While satisfied that the mother's alleged negligence was a question of fact for the jury, the situation and circumstances surrounding the accident may be very briefly outlined. The deceased had accompanied her mother and her brother Cecil, fourteen years of age, to the small village of Good Thunder, in Blue Earth county in this state. They drove in the family car, herein referred to as plaintiff's car. After doing some errands in the village, they started to drive back to their farm home, going west on the highway here in question. This highway was a graveled road, the gravel part being about 24 feet wide at the place of the accident. Within, but at the west edge of the village they drove into a filling station, located on the south side of the highway and set back about 40 feet from the south edge thereof, for the purpose of buying some gasoline for the car. Cecil was driving the car. While stopping at the filling station, Cecil went north across the highway to a dwelling house to get a drink. The child Marcella then asked her mother if she could go across the road to get a drink and was given permission so to do. There was at this time one other car at the filling station referred to as the Flemming car, which had been served with gasoline and had then driven out on the curved driveway to near the edge of the highway and there stopped. The position of this car was some distance to the west and north of the filling station pumps, where plaintiff's car was standing. Marcella and her mother were sitting in the plaintiff's car. After being given permission, the child got out of the car, and, according to the mother's testimony, ran or hopped from there down to the edge of the graveled highway, there stopped and looked, and then started to walk across the highway. When she had arrived at the center of the graveled highway, or just past the center thereof, she was struck by defendant's car, coming from the west at an excessive rate of speed, and was injured so that she died shortly thereafter.
The mother testified that before permitting Marcella to go across she looked down the highway and saw no car approaching; that she then watched the child going down to the highway, saw her stop and look, and watched her until she reached the center of the highway or was a little past the center, and then saw her struck by the defendant's car; that she did not see the defendant's car until the moment of the accident. The son Cecil, who was up near the house where he had gotten a drink of water, testified substantially the same, that he saw Marcella come up to the road, stop, and then walk across the highway; that she was struck when at the center of the road. The evidence further shows that the home of these parties was on this same highway some distance farther west; that Marcella had been attending school and in so doing walked back and forth, and crossed back and forth, over this highway; that she was well acquainted with the highway and with the traffic ordinarily moving thereon. So far as appears, she was of the average intelligence and experience of a child of her age. While this highway was a well-traveled road, the evidence does not show that there was any other traffic thereon, at the time and place of the accident, except the defendant's car. In this situation, we are asked to hold, as a matter of law, that the mother was guilty of negligence in permitting the child to cross the highway, in not keeping a closer outlook for cars, and in not seeing defendant's car in time to have warned the child or to have prevented her from going onto the highway. We conclude, as already stated, that the question was a question of fact for the jury and that it cannot be said that, as a matter of law, the mother was negligent.
In the case of Converse v. Adleman, 153 Minn. 306, 190 N. W. 340, 341, the child injured was four and a half years old. It was sought to hold the parents guilty of contributory negligence, the same as here. The jury found that the parents were not negligent. In the opinion it is stated: ...
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