Dohm v. R. N. Cardozo & Bro.

• Decision Date: 04 December 1925
• Docket Number: No. 24882.,24882.
• Citation: 165 Minn. 193,206 N.W. 377
• Parties: DOHM v. R. N. CARDOZO & BRO.
• Court: Minnesota Supreme Court

206 N.W. 377

165 Minn. 193

DOHM v. R. N. CARDOZO & BRO.

No. 24882.

Supreme Court of Minnesota.

December 4, 1925.

Appeal from District Court, Ramsey County; John W. Boerner, Judge.

Action by Arthur J. Dohm against R. N. Cardozo & Bro., a corporation. After a verdict for plaintiff, defendant appeals from an order denying its alternative motion for judgment notwithstanding the verdict or for a new trial. Affirmed.

Barrows & Metcalf, of St. Paul, for appellant.

Douglas, Kennedy & Kennedy, of St. Paul, for respondent.

WILSON, C. J.

Defendant appeals from an order denying its alternative motion for judgment notwithstanding the verdict or for a new trial. Plaintiff was given a verdict for $4,000 for personal injuries and damages to his automobile resulting from an automobile collision claimed to have been caused by defendant's negligence.

Pleasant avenue in St. Paul extends northeast and southwest. Sherman street intersects from the southeast. We will consider this case as if the streets were square with the world. Plaintiff was driving his Franklin sedan car westerly along the northerly side of Pleasant avenue. Defendant's employee was driving its truck easterly along the southerly side of the avenue. The avenue was paved with creosote blocks, and the pavement was slippery. When plaintiff's car was about 70 feet east of Sherman street it became unmanageable and skidded to the left. He could not control it. It skidded southwesterly across the center line of the avenue and into the line of east-bound traffic. His automobile headed southwesterly, even though the front wheels were turned in a northerly direction. Plaintiff was driving at a moderate speed — 6 to 12 miles per hour. When plaintiff's car began to skid, defendant's truck was about 125 feet west of Sherman street, or about 175 feet from the point of collision, which was at a point about 5 feet from the southeast corner of the street intersection. The front part of the truck struck the right rear wheel of plaintiff's car. The truck was traveling from 20 to 25 miles per hour. Plaintiff was thrown through the window of the door of his car and seriously injured.

Defendant's speed at street intersection, failure to stop or materially to reduce speed, or to turn the truck in order to avoid a collision, presented a jury question as to the defendant's negligence.

It is urged that plaintiff was guilty of contributory negligence. His explanation of his situation is, in substance, this:

"The car became unmanageable and skidded to the left, and still sliding downward with the inclined street and became unmanageable to that extent that jerking and twitching * * * I turned to keep the car headed on, which I did, and turned, keeping to the right, hoping that it would correct itself and right itself, but it kept on skidding in spite of me. It was skidding sideways to the left — I was unable to get it back, unable to control my car. I knew the street was wet and slippery. I tried gradually put on the emergency, the foot brake pedal, and gradually back and forth, to break that motion, but it was impossible; it continued to do the same slide. The weight of the car, it seemed, took it to the left. And I also kept pulling the steering wheel towards the right, hoping that it would right itself or pick ground, and I could go to my right side again, but was unable to. I kept applying my foot brake and releasing it, back and forth, on and off; not terrific, but just on and off. I applied my emergency and blew my horn, and I threw my car into neutral lever. I did this because I saw the truck was coming such a rapid rate of speed that there was only one chance left, try my emergency, and I applied it tight and threw the shifting lever into neutral so there would be no power on my car — the motor."

Plaintiff's version has some corroboration by other witnesses. We think this amounts to more than, as claimed by defendant, to say, "I couldn't help it." In our opinion the entire record presented a jury question as to contributory negligence.

The court, in the charge to the jury, in part said this:

"The evidence shows in this case conclusively that the plaintiff was to the left of the center of the street at the time of the collision. This, as I have already indicated, is negligence, unless you find that some reasonable necessity required him to pass to the left of the center of the street. If you find that the plaintiff, while exercising reasonable and ordinary care in the driving and in the control and management of his car under all the conditions as they existed on the street there at that time, was unable to avoid passing to the left of the center of the street, then he would not be guilty of negligence in so doing. But if you find that he was not exercising reasonable and ordinary care in the matter of the speed at which he was driving, or in the matter of the management or control of his car under the conditions of the traffic and conditions of the street which existed there at that time, and you find that, by reason of this failure on his part to use reasonable and ordinary care, he was forced to go or did go to the left of the center of the street, then he would be guilty of negligence."

Defendant has made this part of the charge the subject of assignments of error. It says that the court should have instructed the jury in reference to plaintiff's contributory negligence, (1) that the presence of plaintiff on the left side of the street made a prima facie case of negligence as a matter of law; and (2) that this cast the burden upon him to excuse or justify his presence there.

We must not lose sight of the fact that in certain cases the...