Flaaten v. Lyons

• Citation: 157 Minn. 362,196 N.W. 478
• Decision Date: 14 December 1923
• Docket Number: No. 23669.,23669.
• Parties: FLAATEN v. LYONS.
• Court: Supreme Court of Minnesota (US)

157 Minn. 362

196 N.W. 478

FLAATEN

v.LYONS.

No. 23669.

Supreme Court of Minnesota.

Dec. 14, 1923.

Appeal from District Court, St. Louis County; C. R. Magney, Judge.

Action by Roy H. Flaaten, as administratrix of the estate of Jens H. Flaaten, deceased, against Charles Lyons. From judgment for plaintiff and an order denying a new trial, defendant appeals. Affirmed.

Syllabus by the Court

Where no exception was taken to a denial of the motion for a directed verdict either at the trial or in the motion for a new trial, the ruling cannot be reviewed on appeal.

A requested instruction was properly refused because inaccurate.

Defendant's negligence in running his automobile against plaintiff's decedent, causing death, was clearly proven, and the jury were justified in finding decedent free from contributory negligence.

In passing on the question whether newly discovered evidence entitled defendant to a new trial, the court should consider whether such evidence would be likely to change the result on another trial. Here the court might well conclude that it would not, and, furthermore, the alleged newly discovered evidence was merely cumulative and corroborative of what defendant presented at the trial, and the court did not abuse judicial discretion in denying a new trial on the ground urged.

The verdict is not excessive. Burdick, Campbell, & Bush, of Duluth, for appellant.

McCoy & Hansen, of Duluth, for respondent.

HOLT, J.

A few minutes before midnight on August 5, 1922, an automobile driven by defendant killed Jens H. Flaaten, then in the act of crossing Superior street in Duluth from the north side thereof at or near the easterly line of Fifth avenue west. Double street car tracks are laid in Superior street. Flaaten was struck a few feet north of the northerly rail of the track by the left headlight of the car, driven west, and was rolled or carried under the car until it stopped in front of the Holland Café. In this action to recover for his death, the jury awarded the widow and next of kin $6,800.

Defendant contends that no actionable negligence was shown as to him and that decedent's contributory negligence appeared as a matter of law, hence there should have been a directed verdict; that the court erred in refusing to give a requested instruction; that the verdict is not justified by the evidence; that on the ground of newly discovered evidence, a new trial should have been granted; and that the verdict is excessive.

Defendant moved for a directed verdict, but took no exception to the ruling denying the motion nor assigned error thereon in the motion for a new trial, hence is in no position to urge error here on that score.

[2] No further need be said of the refusal to give defendant's requested instruction than to quote the first sentence therefrom:

‘The motor vehicle law prohibits the driving of a motor vehicle on a public highway in this state, where the same passes through the closely built up portion of any incorporated city in excess of ten miles an hour, only when that speed is maintained for a distance of one-tenth of a mile.’

The instruction does not quote correctly even that part of the statute which defines what is prima facie evidence of unreasonable speed. The statutory prohibition is against driving at ‘a speed greater than is reasonable and proper, having regard to the traffic and use of the highway, or so as to endanger the life or limb or injure the property of any person.’ Section 2635, G. S. 1913, as amended by section 1, c. 475, L. 1917 (Gen. St. Supp. 1917, § 2635).

[3] Defendant does properly raise the question that the verdict is without support and contrary to law. As we read the evidence defendant's negligence is not open to doubt. In approaching this crossing, one of the most used in the city, he speeded up his car to over 20 miles an hour according to his own...