Downey v. Frey

• Decision Date: 31 July 1964
• Docket Number: No. 39191,39191
• Citation: 130 N.W.2d 349,269 Minn. 66
• Parties: John DOWNEY, a minor, by Dorothea Downey, his mother and natural guardian, and Dorothea Downey, individually, Respondents, v. George FREY et al., Appellants.
• Court: Minnesota Supreme Court

Page 349

130 N.W.2d 349

269 Minn. 66

John DOWNEY, a minor, by Dorothea Downey, his mother and natural guardian, and Dorothea Downey individually, Respondents, v. George FREY et al., Appellants.

No. 39191.

Supreme Court of Minnesota.

July 31, 1964.

Syllabus by the Court

1. It is the right and duty of a trial court in a civil action to direct a verdict for a party when it would obviously be its duty to set aside a verdict against him.

2. A motion for a directed verdict accepts the view of the entire evidence most favorable to the adverse party and should be granted only in those unequivocal cases where, in the light of the evidence as a whole, it would be the duty of the trial court to set aside a contrary verdict as being manifestly against the entire evidence or contrary to the law applicable to the case.

3. The trial court properly ruled that the defendant driver was guilty of negligence as a matter of law.

4. The overwhelming preponderance of the evidence leaves no doubt that plaintiff was standing beside his parked car when hit. This being so, Aide v. Taylor, 214 Minn. 212, 7 N.W.2d 757, 145 A.L.R. 530, is controlling and clearly warrants a directed verdict in favor of plaintiff on the issue of his contributory negligence.

Affirmed.

Lasley & Foster, Minneapolis, for appellants.

Murnane, Murnane, Battis & deLambert, Robert W. Murnane, St. Paul, for respondents.

NELSON, Justice.

John Downey, a minor, by Dorothea Downey, his mother and natural guardian, and Mrs. Downey, individually, brought this action to recover damages for injury sustained by John in an accident in which he was struck by an automobile driven by defendant Richard Frey and owned by his father, defendant George Frey. The trial court directed a verdict in favor of plaintiffs on the issue of liability, submitting only the question of damages to the jury for its determination. Defendants appeal to this court from an order denying their alternative motions for judgment notwithstanding the verdict or for a new trial.

Two issues are presented on appeal--(1) whether the trial court erred in holding that defendant Richard Frey was negligent as a matter of law, and (2) whether it erred in holding that plaintiff John Downey was free from contributory negligence as a matter of law.

If all conflicts in the evidence are resolved in favor of the prevailing parties below, the pertinent facts appear to be as follows: The accident occurred about midnight on June 13, 1961, on Lincoln Avenue in St. Paul, between Pascal Avenue, intersecting to the east of the accident scene, and Saratoga Avenue to the west thereof. The area involved is residential and there are sidewalks on each side of Lincoln Avenue adjacent to boulevards lined with trees. There are six street-light standards spaced 100 feet apart on alternate sides of the street. The lamps in the standards are composed of plastic or frosted glass panels arranged hexagonally and each lamp gives approximately as much light as a 150-watt bulb.

John Downey, age 17, had driven his automobile to the home of a friend, Joe Scherer, whose home was the third house west of Pascal Avenue on the north side of Lincoln Avenue. Downey parked his car on the north side of Lincoln slightly to the east of the Scherer home and went with Scherer in his car to visit a friend. When they returned later in the evening, other cars were parked on each side of the street. While Downey and Scherer were talking on the front steps of the Scherer home, four girls they knew drove up in a white convertible automobile and parked on the south side of Lincoln Avenue some 25 to 50 feet southwest of Downey's car, and the two boys walked over to talk with the girls. The boys stood next to the driver's side of the convertible on Lincoln. After a short time, Downey stated he was going home. After looking in both directions down Lincoln Avenue, he walked diagonally (northeasterly) toward his automobile. As he proceeded toward his car, another car, driven by defendant Richard Frey, turned east from Saratoga Avenue onto Lincoln Avenue. The low-beam headlights were lit on Frey's car, causing the street to be illuminated some 50 to 60 feet in front of his car. According to Frey, he saw the convertible and Scherer standing, with his elbows resting on the window ledge on its driver's side, from 6 to 10 car lengths away. He said that Scherer's back protruded into the street about 3 feet.

Frey stated that he passed the convertible at a speed of approximately 25 miles per hour. Scherer and the girls in the convertible estimated Frey's speed at 40 miles per hour. There is testimony that as Frey passed Scherer and the four girls, they joined in shouting, 'Slow down.' Downey was struck by the left front portion of Frey's car at a point near the left headlight. Frey acknowledged that the speed of his car had not decreased from the time it passed the convertible until it struck Downey. Frey said that he did not see Downey until after the impact, and Downey stated that he saw only a headlight beam an instant before being hit. The force of the impact caused Downey to be thrown onto the hood of the Frey car. He was first seen lying next to the north curb of Lincoln Avenue behind his parked car. There is a conflict in the testimony as to how far the Frey car traveled after the impact. Richard Frey stated that his car stopped within 30 feet after the impact. Another witness testified that the distance was 80 feet.

Frey testified that he was not distracted when he first saw the convertible and Scherer standing beside it. He further testified that in order to afford ample room to Scherer he steered his car so that the center of the hood appeared to be in the middle of Lincoln Avenue. No direct evidence was produced by Frey with respect to where Downey was prior to the accident. Witnesses for Downey stated that Frey's car was in the north lane of Lincoln Avenue and that Downey was standing next to the driver's side of his parked car when he was struck. Scherer testified that it appeared almost as if the Frey car had struck the Downey car. Downey said that he was standing one foot from the door post of his car and was about to reach toward the door to open it when he heard Scherer and the girls in the convertible shout, 'Slow down.' As he looked over his shoulder 'to see what it was,' he was hit. Scherer testified that Downey was facing toward the north when struck by the Frey car.

1--2. It is the right and duty of a trial court in a civil action to direct a verdict for a party when it would obviously be its duty to set aside a verdict against him. A motion for a directed verdict accepts the view of the entire evidence most favorable to the adverse party and should be granted only in those unequivocal cases where, in the light of the evidence as a whole, it would be the duty of the trial court to set aside a contrary verdict as being manifestly against the entire evidence or contrary to the law applicable to the case. ¹

3. Applying the foregoing rule to the first issue before us--whether the trial court erred in finding Richard Frey to have been negligent as a matter of law--we reach the conclusion upon the record submitted that the trial court properly directed a verdict in favor of plaintiffs on this issue. The court's ruling that Frey was guilty of negligence as a matter of law finds ample support even...