Erickson v. Kuehn
| Decision Date | 12 July 1935 |
| Docket Number | 30441. |
| Parties | ERICKSON v. KUEHN. |
| Court | Minnesota Supreme Court |
Appeal from District Court, Yellow Medicine County; Harold Baker Judge.
Action by Ferdinand Erickson against A. J. Kuehn. Judgment for plaintiff, and from an order denying a new trial, defendant appeals.
Order affirmed.
Syllabus by the Court .
1. The evidence sustains the verdict finding that defendant's negligent driving of a truck caused it to collide with a car in which plaintiff was a passenger to his injury.
2. The two assignments of error upon the exclusion and admission of evidence are without merit.
3. There was no misconduct of counsel which calls for a new trial.
4. The refusal of the court to give instructions presented orally at the conclusion of the charge is not ground for a new trial the charge given being adequate.
Daly & Barnard, of Renville, for appellant.
Guesmer, Carson & MacGregor, of Minneapolis, and Paul D. Stratton, of Granite Falls, for respondent.
Defendant appeals from the order denying a new trial. The action was to recover for injuries received in the collision between a truck operated by defendant and a Ford car in which plaintiff was a passenger. Plaintiff had a verdict. The collision occurred at about 7 o'clock in the evening of November 9, 1933, on a graveled highway running east and west through the little village of Echo, this state. The highway is the main business street of the village for a couple of blocks west of the place of collision. Defendant was driving his truck west, and one Czaplewski, with whom plaintiff was riding, was driving east. At a point some few feet east of the easterly intersection of a north and south street the two vehicles came in contact. The Ford car was struck back of the hood and completely wrecked. The truck was not extensively damaged. Each driver claimed to have occupied the proper side of the highway, and accuses the other of having swerved over against his vehicle. It is undisputed that the graveled part of the highway was some 27 feet in width at the place in question with grass plots on either side some 10 feet wide. It was somewhat crowned. On each side of the center were well-marked lanes for east and west travel. The headlights of both vehicles were burning. There was no other traffic on the highway. The Ford was going less than 20 miles an hour, and there is no direct evidence that the truck was driven at an excessive speed. Defendant's attention was diverted by the presence of three 12 year old boys at his side of the road just about the time of the collision. Each driver noticed the vehicle approaching because of the headlights. The Ford had on a two-gallon can of oil which was thrown out in the street by the impact where it tipped over and the oil poured out. All agree that this oil spot was in the east lane of travel; that is, south of the center of the highway. After the collision the Ford fronted to the north. The truck swerved to the southwest and approached within a few feet of the south line of the gravelled roadway some 50 to 100 feet west of the collision, then went back to its own side of the road. There is much variation and dispute as to details, but the chief dispute was as to the position of the Ford car just after the collision, plaintiff's witnesses claiming that it was south of the center of the roadway, and defendant's that it was mostly if not wholly north of the center. It is clear that the jury in addition to the conflicting testimony of the occupants of the vehicles could find corroboration either for plaintiff and his driver or for defendant in the position of the oil spot, the position of the Ford, the tracks of the truck, the place where the broken glass and splinters were noticed, and other incidents developed at the trial. There was no excuse for a collision where each saw the other's headlights approaching for more than a block...
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