Gardner v. Germain
| Decision Date | 26 October 1962 |
| Docket Number | No. 38200,38200 |
| Citation | 117 N.W.2d 759,264 Minn. 61 |
| Parties | James L. GARDNER, trustee for the heirs of James H. Gardner, deceased, Appellant, v. Robert J. GERMAIN, Respondent. |
| Court | Minnesota Supreme Court |
Syllabus by the Court
1. A verdict approved by the trial court will not be disturbed on appeal unless a manifest injustice has been done, or it is not supported by the evidence or is contrary to the evidence.
2. Instructions given by the trial court on the duty of a motorist where children may be present, and the degree of care which a child must exercise, Held proper.
3. Failure by the court to charge the jury on the right of a pedestrian to assume due care on the part of a motorist is not an omission affecting fundamental law and must be raised by timely exception.
4. The so-called 'last clear chance' doctrine does not insulate contributory negligence if defendant was not aware of the danger in time to avoid it.
5. Failure to advise counsel until the time of final argument that a special verdict would be submitted Held not to be prejudicial error.
6. A juror's affidavit purporting to express the jury's intention in executing answers to a special verdict may not be used to impeach the jury's findings.
Thoreen, Thoreen & Lawson, Stillwater, for appellant.
Ralph T. Lilly, St. Paul, for respondent.
Plaintiff appeals from an order denying his motion for judgment n.o.v. or a new trial in an action for the death by wrongful act of James H. Gardner, an 8-year-old child. At the time of the accident decedent lived in Stillwater next to Highway No. 95 where it runs along the St. Croix River. On Sunday, May 10, 1959, he and three brothers came up an embankment to cross the road on their return home from a hike to the river. An older boy had escorted two of the children across the highway and had left James and a younger brother at a guardrail with the intention of returning in a few moments to supervise their crossing when it was safe. The only eyewitness to the accident, one Roger Albrecht, was driving north on Highway No. 95 toward the intersection with Highway No. 96 when defendant appeared from the north driving in the opposite direction. Albrecht testified that as the two vehicles approached a dog ran out from the east side of the road where the boys had been waiting and 'as soon as the dog crossed, the boy looked my way and started running, and he did not look the other way.' Before James reached the opposite side of the highway he apparently sensed the presence of defendant's vehicle and veered south toward Albrecht but was almost immediately struck by defendant's automobile. Defendant testified he did not see the child until the moment of impact when he swerved his car to the right but was unable to avoid the collision.
The jury was given a special verdict requiring findings on seven issues. It determined that defendant was exceeding the 30 miles per hour speed limit and was guilty of negligence which was a proximate cause of the accident; that James was guilty of contributory negligence which was also a proximate cause of the accident; and that plaintiff as trustee was entitled to damages in the sum of $12,670.
Plaintiff contends that the evidence does not sustain a finding that decedent was guilty of contributory negligence; that the court's charge on contributory negligence and right-of-way was inadequate; that the court erred in failing to charge on decedent's right to assume defendant would exercise care; that even if decedent were found guilty of negligence defendant's negligence was an intervening cause of the accident- ; that it was error to submit a special verdict on short notice; and that the court abused its discretion in not giving additional instructions and as a result the jury's findings relative to contributory negligence were executed by mistake and contrary to its intention.
1. It is axiomatic that when a verdict has the approval of the trial court it will be sustained on appeal unless a manifest injustice has been done 1 or there is no evidence to support it, or the weight of the evidence is palpably contrary to the verdict. 2 Tested by these rules, the trial court's order is correct.
2. The court's charge on contributory negligence was accurate and complete. The statutory presumption of due care by a decedent was given, including an instruction that it was not conclusive on the jury but could be overcome or rebutted. 3 In addition, the court correctly stated that the law imposed on motorists a higher degree of care in places where it may reasonably be expected that children are in the vicinity. The statute governing the right-of-way of pedestrians and use of the horn was read, together with the statutory admonition requiring proper precaution for the protection of children on the roadway. 4
3. We find no merit in plaintiff's claim that it was prejudicial error, requiring a new trial, to omit from the charge an instruction that decedent had a right to assume defendant would exercise due care for decedent's safety. The only evidence of how the accident occurred negatives any reliance by decedent on this assumption. More important, no exception to the omission was taken by plaintiff. We do not regard the instruction as one of fundamental law or controlling principle which may be raised for the first time in a motion for a new trial. 5
4. Plaintiff argues that defendant's negligence was gross, and in comparison, decedent's only slight, and that contributory negligence is therefore effectively insulated, citing Guile v. Greenberg, 192 Minn. 548, 257 N.W. 649, and Seward v. Minneapolis St. Ry. Co., 222 Minn. 454, 25 N.W.2d 221. The plaintiff in the Guile case was a passenger, negligently riding on the outside of a car which collided with another vehicle. We said that while plaintiff's position may have aggravated the injuries, it did not contribute to the collision. Hence we held it was not contributory negligence which barred recovery. The case at bar is readily distinguishable in that if decedent was negligent, as the jury found, quite obviously his negligence was a proximate cause of the accident.
The court in the Seward decision held that where a streetcar operator, upon seeing plaintiff in a position of danger, failed to prevent a collision when she had ample time to avoid it the jury was justified in finding her guilty of negligence which was an intervening, efficient cause of the accident, insulating the plaintiff from contributory negligence. Here there is no testimony that defendant saw decedent in time to take effective...
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