Johnson v. Townsend
| Decision Date | 05 July 1935 |
| Docket Number | No. 30361.,30361. |
| Citation | 261 N.W. 859,195 Minn. 107 |
| Parties | JOHNSON et al. v. TOWNSEND. |
| Court | Minnesota Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Carlton County; E. J. Kenny, Judge.
Actions by Olive B. Johnson and her husband against Fanny Townsend. From an order denying motion in alternative for judgment, notwithstanding verdicts, or a new trial, defendant appeals.
Reversed, with direction.
Syllabus by the Court.
Plaintiff's wrist was fractured when defendant's car, in which plaintiff was riding, skidded on a freshly oiled road and tipped over in the ditch. It is held:
The situation disclosed by the evidence did not justify the jury in finding defendant negligent from the mere fact that she, in the attempt to avoid meeting a car traveling on the dry half of the roadway, drove onto the freshly oiled half of the road, her proper lane of travel.
DEVANEY, C. J., and HOLT and HILTON, JJ., dissenting. Mitchell, Gillette, Nye & Harries, of Duluth, for appellant.
J. E. McKenna, of Cloquet, for respondents.
Defendant appeals from the order denying her motion in the alternative for judgment, notwithstanding the verdict, or for a new trial in each case.
Plaintiff and defendant are sisters. The former was injured while a passenger in a car driven by the latter. The action is to recover damages for such injuries, it being claimed that they were caused by defendant's negligent driving. The husband of plaintiff also sued defendant to recover the damages resulting to him from his wife's injuries. The two actions were tried as one. Verdicts were returned for the plaintiffs. The assignments of error in this court present only two questions: 1. Is there sufficient evidence to sustain the finding of actionable negligence? 2. Did the statement in the charge, that there was a sharp dispute in the evidence as to there being room to pass the meeting car without going on the oiled part of the road, prejudice defendant?
We need not refer to the husband's case. In September, 1933, plaintiff went by rail from her home in Duluth, this state, to New York City to assist defendant, who was to drive from there in an automobile with her two children, nine years and nine months in age, to Santa Fé, N. Mex. The trip was made without mishap, defendant driving most of the way, plaintiff occasionally for 50 miles or less at a time. Before returning to her home, plaintiff was asked to accompany defendant and her children to Albuquerque to do some shopping. They took the automobile, defendant driving. When 30 miles south of Santa Fé, they met a crew oiling the roadway. Mr. Clements, in charge of the oiling, flagged them down, and indicated that they should travel carefully and on the east or left side of the road. Defendant slowed down and passed onto the east half of the road to the top of the grade-a distance variously estimated from 50 feet to 200 yards-when she observed a car coming toward her. The roadway was 20 feet wide with shoulders on either side about 3 feet in width. On the west half of the road oil had just been spread. The east half was dry. The roadway was hard-surfaced with the center somewhat crowned. Defendant did not think there was room for the approaching car to pass safely if she remained on the east or dry side of the road, and she attempted to return to her side. The moment the front of her car entered the oiled portion she lost control. It slewed around and slid into the right-hand ditch with the car headed back. Defendant admits that she got excited and lost her head when she realized that the car could not be controlled. The thought that all might be killed made her frantic. Neither plaintiff nor defendant recollect clearly what took place, except that the car slewed around and tipped over in the ditch. Plaintiff's left wrist was fractured. No one else in the car was severely hurt. There was a slight dent on the body of the car, but no glass was broken, and, on being righted and pulled back onto the roadway, it was driven on its own power back to Santa Fé.
The complaint charged defendant with negligence in operating with defective brakes, failure to stop so as to allow the approaching car to pass, excessive speed, and driving the car onto the freshly oiled part of the road. There was no evidence at all to show defective brakes. No testimony is found from which it could be inferred that ordinary care required defendant to stop her car upon the dry portion of the road to let the approaching car pass. Neither plaintiff nor defendant could give any reliable estimate of the speed of the car immediately...
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Daly v. McFarland, No. A10–1184.
...have made it under similar conditions.’ ” Byrns v. St. Louis Cnty., 295 N.W.2d 517, 519 (Minn.1980) (quoting Johnson v. Townsend, 195 Minn. 107, 110, 261 N.W. 859, 861 (1935)). The jury instruction “should always be given where it is consistent with the theory of one of the parties to the a......
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Lee v. Smith, 37314
...unless it was so hazardous that the ordinarily prudent person would not have made it under similar conditions.' Johnson v. Townsend, 195 Minn. 107, 110, 261 N.W. 859, 861. However, the rule does not apply unless it is first determined that there existed a real peril to which the party seeki......
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Toetschinger v. Ihnot
...miles per hour when the brakes were applied. The opinion was based upon the 'coefficient of friction.'1 Accord, Johnson v. Townsend, 195 Minn. 107, 110, 261 N.W. 859, 861 (1935) ('* * * In (an emergency situation) the law is that one, suddenly confronted by a peril, through no fault of his ......
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County of Todd, Minn. v. Loegering
...not, however, approve the rule in this form, and we adhere to the rule as we have previously declared it to be". See Johnson v. Townsend, 195 Minn. 107, 261 N.W. 859 (1935). While the emergency rule mentioned and the Minnesota court's construction of it is explicit on the point discussed, w......