Fieve v. Emmeck

• Decision Date: 03 August 1956
• Docket Number: No. 36843,36843
• Citation: 248 Minn. 122,78 N.W.2d 343
• Parties: Guida FIEVE, Respondent, v. Alvin EMMECK, Respondent, Henry C. Gottwald, d/b/a Yellow Cab Company, Appellant.
• Court: Minnesota Supreme Court

Page 343

78 N.W.2d 343

248 Minn. 122

Guida FIEVE, Respondent, v. Alvin EMMECK, Respondent Henry C. Gottwald, d/b/a Yellow Cab Company, Appellant.

No. 36843.

Supreme Court of Minnesota.

Aug. 3, 1956.

Syllabus by the Court.

1. Viewing the instructions of the court to the jury in their entirety, held that the jury was not given an erroneous conception of the degree of care which a common carrier owes to its passengers.

2. Inadvertent omissions in a charge may not be assigned as error unless specific objection thereto, stating the grounds of the objection, is made before the jury retires to consider its verdict.

3. While testimony relating to a statement made pursuant to an offer of settlement is not admissible as an admission of liability, it may, under proper circumstances, be admitted for the limited purpose of explaining the circumstances under which the statement was given.

4. Under the circumstances of the instant case, held: (1) That the lower court was not in error in allowing counsel to mention settlement in the manner he did in his final argument, and (2) that counsel was not guilty of misconduct in making said argument.

5. Cost of printing supplemental record wholly unnecessary to proper presentation of the merits of an appeal will not be allowed as part of the disbursements of the prevailing party.

Affirmed.

Schermer & Gensler, Minneapolis, for appellant.

Dygert & Riordan, Minneapolis, for Guida Fieve.

Thomas J. Battis, Murnane & Murnane, St. Paul, for Alvin Emmeck.

DELL, Chief Justice.

This is an action to recover damages for personal injuries suffered as a result of an intersection collision between a taxicab in which the plaintiff was a passenger and another automobile.

The collision occurred on December 21, 1953, at approximately 7 p.m. at the intersection of Highway 61 and Burns Avenue in St. Paul. At that point Burns Avenue runs in an easterly and westerly direction and Highway 61 in a northerly and southerly direction. The highway is divided into two concrete lanes each of which is approximately 29 feet wide and they are separated by a boulevard approximately 18 feet in width. There are two stop signs controlling traffic approaching the highway on Burns Avenue from the west, one at the intersection of the southbound lane of the highway and Burns Avenue and the other located on the boulevard, requiring vehicles to stop before entering into the northbound lane of the highway.

The plaintiff, Guida Fieve, was a passenger in a taxicab driven by David Goldberg and owned by the defendant Henry C. Gottwald, d.b.a. Yellow Cab Company, which taxicab approached the intersection traveling in an easterly direction along Burns Avenue. The defendant Alvin Emmeck and his wife approached the intersection in a northerly direction in his automobile, proceeding in the northbound lane of Highway 61. While there is a curve in the highway, it ends at a point approximately 150 feet south of Burns Avenue, and from that point up to the intersection the highway is straight. The weather was clear, and while there was some testimony that the highway was icy in spots, the roads were ice-free and dry at the intersection.

Taking the view of the evidence most favorable to the verdicts, the circumstances of the collision are as follows: When Emmeck was approximately 100 to 150 feet south of the intersection he first noticed the taxicab which was then crossing the southbound lane of the highway and traveling at an estimated speed of 18 to 20 miles an hour. Emmeck was then in a 40-mile an hour speed zone and was traveling at a speed of approximately 35 miles an hour. The northbound highway was comprised of two driving lanes with a blacktop shoulder to the east. Emmeck approached the intersection traveling in the lane closest to the shoulder. He knew that there was a stop sign controlling traffic entering the northbound lane from the west and assumed that the taxicab would stop in obedience to the sign. He reduced his speed as he approached the intersection. When he was approximately 10 to 20 feet from the intersection and traveling at a speed of about 25 miles an hour he observed, for the first time, that the taxicab was not going to stop in obedience to the stop sign but was going to cross the northbound lane directly in front of him. He immediately applied his brakes with full force but was unable to avoid a collision, and the front end of his automobile struck the cab near its right rear door. At the time of the actual impact, Emmeck was traveling at approximately 10 to 15 miles an hour. As a result of the collision, plaintiff was thrown from the rear seat of the taxicab onto the street suffering severe injuries.

While the driver of the taxicab, David Goldberg, testified that he stopped for the stop sign located on the boulevard which controlled traffic moving in an easterly direction across the northbound lane of Highway 61, he also testified that he had an unobstructed view for 300 feet to his right but failed to see the lights of any vehicle approaching from the south; that as he entered into the northbound lane he was looking off to the left 'where the (plaintiff's) apartment was located' because plaintiff was giving him directions as to where he was to turn after he crossed the intersection and he 'wanted to be sure and see just where * * * (he) was going to turn'; that just after he entered the northbound lane he heard the plaintiff gasp, looked to his right, and for the first time saw the lights of a car approximately 40 to 50 feet to the south and approaching the intersection at a speed which he estimated to be about 45 to 50 miles an hour; and that he then stepped hard on his accelerator but was struck before the taxicab had a chance to respond.

The jury returned a verdict in the sum of $17,500 in favor of the plaintiff and against the defendant Gottwald. It also returned a verdict for the defendant Emmeck finding him 'not guilty of negligence.' Thereupon defendant Gottwald made a motion for a new trial as to all parties but the motion was denied. Judgment was subsequently entered in accordance with the verdicts. This appeal was thereupon taken from the order denying defendant Gottwald's motion for a new trial as well as from the judgment.

Gottwald does not question the size of plaintiff's verdict nor does he contend that the verdicts are not sustained by the evidence. He claims, however, that a new trial should be granted because of: (1) Alleged error in the instructions to the jury, and (2) improper statements made by counsel for Emmeck in his closing argument to the jury.

1. Gottwald argues that the charge given by the court failed to set up a criterion by which the jury could properly test the standard of care required of a common carrier. The court properly defined ordinary negligence to the jury and then instructed it that that standard or degree of care did not apply to one of the defendants in the case. This was followed by an instruction that under certain situations a higher degree of care is required than that exercised by a person of ordinary care and prudence. The jury was then instructed:

'A taxi cab is not an insurer of the safety of its passengers. A taxi cab company engaged in the business of transporting persons for hire is a common carrier and as such the owner as well as the employee Has a duty to exercise the highest degree of care and foresight for the safety of its passengers consistent with the proper conduct of its business and to take every precaution to protect them from injury including the duty to employ competent drivers.' (Italics supplied.)

The italicized portion of the charge is substantially the identical language used in McKellar v. Yellow Cab Co. Inc., 148 Minn. 247, 181 N.W. 348, ¹ wherein the court discussed and defined the degree of care that a common carrier owes to its passengers. Following the court's instructions, counsel for Gottwald excepted to specific portions thereof.

Gottwald contends that the court erred in that the phrase 'practical operation of its business' should have been used in place of 'proper conduct of its business.' It is to be noted that in other decisions of this court various terms or forms of expression have been used in stating the general rule relating to the degree of care required of common carriers. ² While Gottwald cites cases ³ which use the phrase 'highest degree of care consistent with the practical operation' of the train, there are numerous other decisions of this court ⁴ which have used language substantially similar to that used in the charge given in the instant case, including that of McKellar v. Yellow Cab Co. Inc., supra, from which the language used in the charge here evidently was taken.

Even though there is a distinction between 'practical operation of its business' and 'proper conduct of its business,' it is a distinction without a significant difference as applied to a situation such as we have in the present case. It is elementary that a charge must be considered as a whole and, further, must be scrutinized and tested from the standpoint of its total impact or impression upon the jury. ⁵ Here the court first instructed the jury as to the standard of care required in an ordinary negligence action and then instructed it that a higher standard of care is required in cases involving common carriers. The jury was specifically told that a taxicab company is not an insurer of the safety of its passengers. The higher standard of care imposed upon common carriers was further limited by the phrase 'consistent with the proper conduct of its business.' Thus, the charge properly construed did not, as Gottwald suggests, require the carrier to do everything it was possibly capable of doing to prevent the injury, but rather, it was required to exercise the highest degree of care only insofar as such care was consistent with the proper, ordinary, or usual conduct of the carrier's business. A fair and...