Hovey v. Wagoner, 41544

• Court: Supreme Court of Minnesota (US)
• Citation: 287 Minn. 546,177 N.W.2d 796
• Docket Number: No. 41544,41544
• Parties: Barbara J. HOVEY, by Richard R. Corporon, her general guardian, Appellant, v. Enos WAGONER and Luella Wagoner, Respondents, Ellsworth Freight Lines, Inc., and Gerhard Sandvig, Respondents.
• Decision Date: 05 June 1970

Page 796

177 N.W.2d 796 287 Minn. 546 Barbara J. HOVEY, by Richard R. Corporon, her general
guardian, Appellant,
v.
Enos WAGONER and Luella Wagoner, Respondents,
Ellsworth Freight Lines, Inc., and Gerhard Sandvig,
Respondents. No. 41544. Supreme Court of Minnesota. June 5, 1970.

[287 MINN 546] Wallace C. Sieh, Austin, for appellant.

Schacht, Kerr & Schacht, Rochester, for Wagoner.

Alderson, Catherwood, Kelley & Ondov, Austin, for Ellsworth Frt. Lines and Sandvig.

[287 MINN 547] Heard before NELSON, OTIS, ROGOSHESKE, PETERSON, and JAMES F. MURPHY, JJ.

OPINION

PER CURIAM.

This is an appeal from an order of the district court denying plaintiff's motion for judgment notwithstanding the verdict or for a new trial in an action arising from an automobile collision. Plaintiff, Barbara J. Hovey, by Richard R. Corporon, her general guardian, contends that the trial court erred in failing to submit instructions to the jury embracing her theory of the case.

The litigation arises out of a head-on collision between a Ford station wagon, in which plaintiff was a passenger, and a semi-tractor-trailer owned by defendant Ellsworth Freight Lines, Inc., and operated by defendant Gerhard Sandvig. Reduced to the essential facts, the record establishes that, on June 6, 1966, at approximately 7 a.m., the Ford station wagon, owned by defendant Enos Wagoner and driven by his

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wife, Luella, also a defendant, was proceeding in a westerly direction on State Highway No. 16 in Freeborn County. Both Mrs. Wagoner and plaintiff guest were on their way to work. At the same time, the tractor-trailer was proceeding in an easterly direction on the same highway. The weather was clear, the 20-foot-wide highway was dry, and visibility was good. Both vehicles were proceeding at approximately 40 miles per hour. When Mrs. Wagoner reached a point about 200 or 300 feet from the approaching tractor-trailer, she suddenly turned her automobile from the north shoulder of Highway No. 16 into the oncoming lane of traffic. At that time Sandvig reduced his speed and applied the brakes. Prior to the point of impact, the tractor-trailer left 42 feet of skid marks. The Wagoner vehicle left none. The impact occurred wholly on the south half of the highway. There seems to be no dispute as to these circumstances. Although the Wagoners were named as defendants, plaintiff had previously executed a covenant not to sue upon payment of $45,000. The basis of the appeal here is that the trial court erred in refusing to give to the jury certain requested instructions.

It seems to be the theory of plaintiff that, even though the tractor-trailer was on its proper side of the highway at the time of the collision, the driver was nevertheless negligent because he failed to use reasonable care to avoid the collision after he had knowledge of the dangerous situation with which he was confronted. Preliminary to giving the issues to the jury, plaintiff asked for instructions which were taken verbatim from statements of this court in cases where we discussed the duty of the driver of a motor vehicle to exercise due care in avoiding [287 MINN 548] a collision with another automobile approaching on his side of the highway. ¹

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The requests for instructions, examined in light of the record, indicate that they were largely argumentative, as well as being unsupported by the evidence. We have on innumerable occasions said that [287 MINN 549] it is not always good policy for the trial court to use texts of reported decisions in its instructions because they are sometimes misleading. Christensen v. Pestorious, 189 Minn. 548, 250 N.W. 363; Carter v. Duluth...