Dickson v. Bober

• Decision Date: 25 September 1964
• Docket Number: No. 39018--9,39018--9
• Citation: 269 Minn. 334,130 N.W.2d 526
• Parties: Allan DICKSON, a minor by Clarence Dickson, his general guardian, and Clarence Dickson, Respondents, v. Albert BOBER, Appellant.
• Court: Minnesota Supreme Court

Page 526

130 N.W.2d 526

269 Minn. 334

Allan DICKSON, a minor by Clarence Dickson, his general guardian, and Clarence Dickson, Respondents, v. Albert BOBER, Appellant.

No. 39018--9.

Supreme Court of Minnesota.

Sept. 25, 1964.

Syllabus by the Court

1. A plaintiff so injured by reason of an automboile accident as to be unable to testify or understand the proceedings is not prejudiced by an order of the trial court barring his appearance at the trial when the verdict returned by the jury establishes absence of liability on the part of the defendant.

2a. Failure of the trial court to instruct the jury that a person so injured in an automobile accident as to be unable to testify becomes thereby entitled to the presumption of due care was not error.

2b. Evidence considered and held to support trial court's instruction that evidence failed to show that defendant was driving in excess of 60 miles per hour at the time of the accident.

2c. Failure of trial court to read provisions of Minn.St. 169.04 relating to the erection of stop signs by local authorities was not prejudicial error where § 169.30 was embodied in the instruction and the evidence established a prima facie case that a stop sign was authorized and erected and maintained at the intersection is question.

2d. An emergency sufficient to excuse what would otherwise be negligent conduct must be experienced by a party through no fault of his own.

2e. Markings placed on exhibits by witnesses were not such as to mislead jurors. Instructions did not overemphasize duty of jurors to eliminate sympathy or prejudice from their deliberations. Failure to produce a formal resolution of a town board establishing a through highway was not prejudicial error where the fact was acknowledged by the party now complaining. Measurements actually made at the scene have more probative effect than estimates of witnesses made on the basis of general observation.

O'Leary, Trenti & Berger, Virginia, for appellant.

Clarence H. Kleffman, Hibbing, for respondents.

SHERAN, Justice.

Appeal from an order granting a new trial, in the trial court's view 'exclusively on the ground of error of law occurring on the trial.'

On July 25, 1960, at approximately 2:30 p.m., a collision occurred between a motorcycle owned and operated by Allan Dickson, a minor, and an automobile owned and operated by Albert Bober. Both vehicles were damaged. Allan Dickson sustained personal injuries giving rise to extensive hospital and midical expense. Bober was hurt but not seriously. Actions were instituted by Clarence Dickson on behalf of his minor son for damages and on his own behalf for his loss as father of Allan. Defendant denied negligence in each of the cases and asserted contributory negligence and assumption of risk. He also counterclaimed for his property damage and personal injury. Alternative forms of verdict were submitted to the jury which, by finding in favor of the defendant at the close of a consolidated trial and rejecting his counterclaim determined, in effect, that the accident was proximately caused by the negligence of both drivers. Upon motion of plaintiffs the trial court ordered a new trial, assigning as its reason a ruling which had prevented Allan's appearance before the jury. Defendant argues that this ruling did not constitute prejudicial error justifying a new trial. Plaintiffs, in support of the order granting a new trial, contend that Allan was entitled as a matter of law to be in the courtroom. They also urge that other errors not acknowledged by the court make retrial necessary. These include: (a) Failure to charge the jury that Allan, being unable to testify as a result of the accident, was entitled to the benefit of a presumption of due care; (b) an instruction that there was no evidence that defendant was driving in excess of 60 miles per hour as he approached the place of the accident; (c) incomplete instructions permitting the jury to find that Baich Road was a through highway; (d) failure to instruct the jury relative to the emergency doctrine as applied to Allan in the operation of his motorcycle; and (e1) failure to caution the jury not to be misled by marks inserted on two of the exhibits, (e2) overemphasis of instructions which related to the elimination of sympathy and prejudice, (e3) allowance of parol evidence on the issue of establishment of a through highway, and (e4) comment concerning the superior probative value of actual measurements made at an accident scene to estimates of distances based on more general observations.

1. The accident changed Allan Dickson from a vital, intelligent, healthy youth to one unable to express or sustain himself, helpless and entirely dependent on others, and wholly unable to comprehend trial proceedings. Before deciding against his appearance in court, the trial judge observed him and noted:

'* * * His eyes seemed to function on detection of an unusual movement. Hideous and agonizing groans and sounds emanated from plaintiff. In this trial test, arranged so that the court would have some conception of what was involved, the above is a fair description of the depressing spectacle that in all likelihood could have been enacted if plaintiff's request (to present Allan to the jury) had been granted.'

Plaintiffs cite numerous decisions to support their claim that Allan had an absolute constitutional right to be in court during his trial. ¹ None is authority for the proposition that the plaintiff in a personal injury action who can neither contribute evidence on the question of fault nor comprehend the proceedings is entitled as a matter of constitutional right to be present in court when the liability issue is litigated even though fully and adequately represented by counsel.

The rights of this plaintiff were protected by the general guardian who brought the action for him and by the attorney selected to represent his interests during the trial. ² While we find no Minnesota decision directly in point, it appears to us that the determination of whether a plaintiff unable by reason of his injuries to contribute to or understand the trial proceedings should be permitted, nevertheless, to attend the trial must rest in the sound discretion of the trial court. The jury in this case determined that the accident was caused by negligence on the part of both drivers. It did not reach the question of damages. Therefore, plaintiffs could not have been prejudiced by the absence of Allan from the courtroom during the trial. ³ Since the order of the trial court granting a new trial was based exclusively upon a ruling, conceived by it to be an error of law, which in our judgment was both proper and necessary, the order granting a new trial is reversed.

2. We are directed by statute in a situation such as this to consider whether a new trial is warranted because of errors of law occurring at the trial but not assigned by the trial judge as a basis for his decision. ⁴

Evaluation of plaintiffs' claims requires these facts: Cooper Road (east-west) and Baich Road (north-south) intersect in Balkan township, St. Louis County, Minnesota. At and near the center of the intersection the traveled surfaces are graveled, almost level, and about 30 feet wide. Trees, weeds, and brush serve to obstruct vision in all directions so that the intersection can be described as a 'blind' corner. There were no disinterested witnesses to describe the collision or the approach of the vehicles to the point of impact. And, as stated, Allan Dickson sustained an injury at the time of the accident which prevented him from testifying.

Albert Bober testified: On the day of the accident the 26-year-old defendant was employed by the Oliver Mining Company at Chisholm. He left work shortly before 2:30 p.m., driving a 1956 blue and white automobile in good mechanical condition. The weather was bright and clear. Driving north on Baich Road, his speed, as he approached Cooper Road, was about 50 miles per hour. The road was dry and there was no other traffic. He could not state his speed as he came within a car length or two of the intersection but, he testified, 'I had slowed down because my foot was off the gas.' Pressed to estimate his speed, he said, 'I would say 40, maybe a little more.' At that time he saw the motorcycle entering from his left. It appeared to be about the same distance from the intersection and traveling at the same rate that he was. It did not change its speed from that time until the two vehicles collided 'either in the middle or a little north of the middle of the intersection.' He reported:

'Well, as I come toward the road, I let up on the gas and looked to the left and back to the right, and then I looked back to the left again and that's when I seen the motorcycle; I would say we could have been no more than 40 feet apart, and I put the brakes on and turned to the right and it was too late and we hit right about in the middle of it, a little more on the intersection, and I went in the ditch on the north side.'

The witness was unable to state whether he had actually applied the brakes before the collision. Following the impact, his car continued on for a distance of about 110 feet, coming to rest partly on the surface and partly in the cast ditch of Baich Road.

Bober's account is consistent with other evidence appearing in the record. There were no skid marks indicating application of brakes by the motorcycle operator. One witness called by plaintiffs was allowed to express the opinion that the Bober car was traveling about 40 miles per hour at impact. Another thought it to have been about 46 miles per hour. Pictures of the vehicles which were introduced in evidence support the conclusion that the motorcycle ran into the left side of the automobile. The cycle moved about 100 feet northerly after impact and the body of Allan was thrown nearly that far in the same direction.

Whether there was a stop sign in place at the southwest corner of...