Jacobs v. Draper

• Decision Date: 06 May 1966
• Docket Number: O-D,No. 39945,39945
• Citation: 142 N.W.2d 628,274 Minn. 110
• Parties: Dorwyn K. JACOBS, as trustee for next of kin of Patrick Jacobs, Respondent, v. Melbourne H. DRAPER, Respondent, John G. Ralston, individually, and dba Mell-ee Ice Cream, Appellant.
• Court: Minnesota Supreme Court

Page 628

142 N.W.2d 628

274 Minn. 110

Dorwyn K. JACOBS, as trustee for next of kin of Patrick Jacobs, Respondent, v. Melbourne H. DRAPER, Respondent John G. Ralston, individually, and dba Mell-O-Dee Ice Cream Appellant.

No. 39945.

Supreme Court of Minnesota.

May 6, 1966.

Syllabus by the Court

1. Actionable negligence is the failure to discharge a legal duty to the person injured. If there is no duty, there is no negligence. Even if a defendant owes a duty to someone else, but does not owe it to the person injured, no action will lie. The duty must be to the person injured. These principles are elementary, and are equally applicable whether the duty is imposed by positive statute or is founded on general common-law principles.

2. It is not due care to depend upon the exercise of care by another when such reliance is accompanied by obvious danger. When children are in the vicinity, much is necessarily to be expected of them which would not be looked for on the part of an adult. It may be anticipated that a child will dash into the street in the path of a car. In all such cases, the question comes down essentially to one of whether the risk outweighs the utility of the actor's conduct.

3. When an act is negligent only if done without reasonable care, the care which the actor is required to exercise to avoid being negligent is that care which as a reasonable man he should recognize as necessary to prevent the act from creating an unreasonable risk of harm to another.

4. The gist of the negligence of the owner and operator of a truck from which ice cream was sold to the public is that they should have realized the danger of just such an accident as did occur, with or without some degree of negligence on the part of the passing driver.

5. Whether or not the parking ordinance and Minn.St. 169.34(6), concerning which the court instructed the jury, imposed any duty on vehicle operators toward pedestrians need not be determined since, if they did, violation of such duties by defendant truck owner's driver would only be cumulative with his breach of the common-law duty of due care.

6. A new trial is granted for misconduct of counsel, not as a disciplinary measure, but solely to prevent a miscarriage of justice. Whether there should be a new trial for misconduct of counsel rests almost entirely in the discretion of the trial court, and its action will not be reversed on appeal except for a clear abuse of discretion.

Cragg & Barnett, Minneapolis, for appellant.

Stanley J. Mosio, St. Paul, for Jacobs.

Murnane, Murnane, Battis & deLambert, St. Paul, for Draper.

NELSON, Justice.

In this action to recover damages for death by wrongful act, the jury returned a verdict against defendant John G. Ralston, d.b.a. Mell-O-Dee Ice Cream. He appeals from an order denying his alternative motion for judgment notwithstanding the verdict or a new trial.

Ralston is the owner of an ice cream truck from which sales of ice cream are made to the general public. The normal method of operation of the truck at the time of the accident involved herein was for the operator to drive along the street, stop at the curb, and make sales from the truck to persons who might be in the immediate vicinity before moving on to a different location. Attached to the truck was a record-playing device and a loud-speaker, and the operator of the truck usually played a record to attract attention while driving and when he stopped to make sales.

Viewing the facts in the light most favorable to the verdict, as we are required to do, they appear to be as follows: About 6 p.m. June 16, 1962, the operator of appellant's ice cream truck drove into the McDonough Housing Project, which has several entrances at which signs are posted saying, 'NO PARKING ANY TIME ON STREETS IN HOUSING AREA.' Just below these signs appear signs saying, 'SLOW WATCH FOR CHILDREN.' After making a 5-minute stop to make sales, the operator drove the truck to the intersection of Timberlake Road and Bigelow Lane within the same housing area, made a righthand turn onto Bigelow Lane, and stopped the truck some 6 to 10 feet from the intersection and next to the curb, the truck facing in an easterly direction. The record-playing attachment was in full operation and some 20 to 30 children and adults gathered on the curb side of the truck to make purchases.

The other defendant, Melbourne Draper, had been driving his automobile north on Timberlake Road with the intention of turning onto Bigelow Lane. Plaintiff's 3 1/2-year-old son, Patrick Jacobs, was beside the ice cream truck with its other customers, but as the defendant Draper turned onto Bigelow Lane and began moving east, Patrick darted from behind the front of the ice cream truck into the path of the Draper car. Draper was driving at a speed of 5 to 15 miles per hour and the record indicates that he attempted to avoid Patrick as he darted into the street but was unable to do so. Patrick died shortly afterward from injuries sustained in the accident.

The jury by its verdict exonerated Draper of responsibility for the accident but found Ralston negligent and his negligence the proximate cause of the accident, although there is nothing in the record to indicate that the operator of the ice cream truck was aware that Patrick had been in the vicinity immediately in front of the truck until after the accident had occurred.

The trial court in instructing the jury made it plain that to recover against either defendant plaintiff was required to prove that that party was negligent and that his negligence 'was a direct cause of plaintiff's injury and damage.' After explaining to the jury what the duty of reasonable care may include, the trial court said:

'* * * Whether or not a duty has been violated depends upon the risks of the situation, the dangers known or reasonably to have been foreseen, and all of the then existing circumstances.

'* * * Where a person knows or has reason to know that children are likely to be in the vicinity, the greater hazard created by their presence or probable presence is a circumstance to be considered in determining whether reasonable care was used. The duty, however, always remains the same--reasonable care under the circumstances.'

The trial court also instructed the jury concerning certain ordinances and statutes after stating that it must 'decide whether or not the statute or ordinance is applicable, depending on what you find the facts to be,' and if so, whether violation of any of them was a direct cause of the accident. The trial court then read St. Paul Legislative Code, § 145.01, which provides:

'No person shall, at any time, stop, stand, or park any vehicle, except when necessary to avoid conflict with other traffic or in compliance with the directions of a police officer or other recognized emergency authority, or in obedience to a traffic control device, in any of the following places:

'Any side of any street within John J. McDonough Homes Addition.'

The court also read St. Paul Legislative Code, § 339.08, as follows:

'Peddlers or pitchman peddlers peddling from vehicles or pushcarts shall not stand upon any street or alley for the purpose of disposing of their goods, but this provision shall not prevent such peddlers from stopping for a sufficient length of time to complete a sale to such purchasers as may be present at the place where such stop is made.'

The trial court next read Minn.St. 169.14, subd. 1, relating to speed restrictions, and § 169.34(6), which prohibits stopping, standing, and parking within 20 feet of a cross-walk at an intersection. The trial court at a later time explained that under Minn.St. 169.96 a violation of any of the provisions of c. 196 by any party to a civil action shall not be negligence per se but shall be only prima facie evidence of negligence.

Ralston contends on appeal that neither the parking ordinance nor minn.St. 169.34(6) was intended to protect pedestrians and should not have been submitted to the jury for consideration. He also contends that the peddling ordinance authorized the operator of the truck to stop as he did for the purpose of making sales. In support of his contention that the parking ordinance and statute are inapplicable, he cites Denson v. McDonald, 144 Minn. 252, 175 N.W. 108. In that case the plaintiff had violated a statute by parking within 20 feet of a fire hydrant. The defendant argued that he would not have struck plaintiff's car if plaintiff had not violated the statute. This court rejected that argument, stating (144 Minn. 253, 175 N.W. 108):

'* * * The ordinance was not for the protection of the traveling public. Its purpose was to keep the hydrant accessible for quick use in case of need.'

Plaintiff, however, contends that the basis for the parking ordinance is the protection of children and that the peddling ordinance, while granting a vendor the right to sell his wares upon public streets, is complementary to other ordinances and does not grant him a right to violate them. Plaintiff calls our attention to St. Paul Legislative Code, § 129.16, which provides in part:

'The Traffic Coordinating Unit is hereby authorized to establish 'No Parking Areas' upon any public street or alley, or part or portion of such streets or alleys where, in the judgment of said Unit, the elimination of parking may facilitate the movement of traffic, Reduce traffic hazards, or eliminate a hindrance to traffic.' (Italics supplied.)

He points also to the warning signs at the entrances to the housing project and to the fact that the project had provided easily accessible parking lots throughout the area, one of which was located some 30 feet from where the ice cream truck had been parked. In view of these facts he argues that the violation of the parking ordinance presents ample grounds upon which a jury could find that Ralston was negligent and that his negligence caused the fatal injury to Patrick.

1. In Osborne v. McMasters, 40...