Johnston v. Selfe
| Decision Date | 08 December 1933 |
| Docket Number | 29,624 |
| Citation | 251 N.W. 525,190 Minn. 269 |
| Parties | JEWELL JOHNSTON v. H. A. SELFE |
| Court | Minnesota Supreme Court |
Action in the district court for Hennepin county to recover damages for injuries sustained by plaintiff in an auto collision between a car in which she was riding and one driven by defendant. The case was tried before Edmund A. Montgomery Judge, and a jury. Plaintiff recovered a verdict of $7,500. Defendant appealed from an order denying his alternative motion for judgment or a new trial. Affirmed.
Automobile -- speed -- negligence of driver.
1. In an automobile accident case the character of the damage to the cars, their position after the accident, together with the plaintiff's testimony, were such that the jury was justified in finding that defendant was guilty of negligence in driving at an unreasonable rate of speed.
Automobile -- injury to guest -- contributory negligence.
2. There is nothing in the admitted facts or those conclusively proved that compelled the jury to reject the plaintiff's testimony which tended to prove that she was free from contributory negligence.
Automobile -- arterial street -- care required when entering.
3. The protection of arterial streets or highways with so-called boulevard stop signs does not require drivers of cars which enter the arterial street to do so at their peril but only to exercise ordinary care with regard to the traffic on the through street at the time of entering thereon.
Automobile -- arterial street -- care required in operation on street.
4. Operators of cars upon arterial streets protected by stop signs are bound to drive with reasonable care as respects the traffic entering from the cross streets.
Automobile -- arterial street -- right of way and speed.
5. Under existing statutes, after a car has stopped for an arterial highway in response to the stop sign, the usual rules in regard to right of way and speed prevail.
Automobile -- arterial street -- right of way and speed.
6. If a driver upon an arterial highway travels at an unlawful speed across a street intersection, he forfeits the right of way which he might otherwise have.
Damages -- not excessive.
7. A verdict of $7,500 is not so excessive as to require reduction or a new trial where the plaintiff suffered fractures of the shoulder blade and collar bone, as well as of the skull, for which last injury there is a reasonable necessity for an operation, all of which was followed by limitation of vision and the existence of severe headaches and symptoms which are reasonably certain to exist until the operation has been had.
Appeal and error -- admission of expert evidence -- prejudicial effect.
8. Error of the trial court in refusing to strike out a part of an expert's answer which was speculative, indefinite, and uncertain as to an injury to plaintiff's back is held to be without prejudice to defendant's substantial rights. 2 Mason Minn. St. 1927, § 9285.
Evidence -- expert -- hypothetical question.
9. That a hypothetical question to an expert is based upon subjective symptoms goes to the weight of his answer, not to its admissibility.
Appeal and error -- review -- motion and objection to evidence.
10. Where no motion is made to strike out an answer to a proper question, the propriety of the answer will not be reviewed here.
Appeal and error -- review -- motion and objection to evidence.
11. Where a motion is made to strike out an answer on one ground only, its propriety as against another and different objection will not be reviewed here.
Evidence -- demonstrative -- fragments of skull bones.
12. It was not error to admit in evidence fragments of bone from the plaintiff's skull where there was controversy as to the character of injury to her head.
Automobile -- arterial street -- speed and right of way -- instructions.
13. Where there was evidence tending to prove that defendant was driving across an intersecting street at a speed faster than was reasonable and proper, the court was correct in charging the jury that if he was driving at an unlawful speed he forfeited his right of way.
Damages -- loss of earnings.
14. Where plaintiff at the time of the accident was employed part of the days of each week the court was justified in submitting loss of earnings as an element of damages.
Merriam & Wright, for appellant.
Victor J. Larson and Barrows, Stewart, Jackson & Junkin, for respondent.
In an action to recover damages for personal injuries received in an automobile accident the plaintiff had a verdict, and the defendant has appealed from an order denying his blended motion for judgment notwithstanding the verdict or a new trial.
The accident out of which this action arose occurred at two a.m. on the 11th day of October, 1931, at the intersection of Cedar avenue and Thirty-first street in the city of Minneapolis. Cedar avenue is an arterial street running in a northerly and southerly direction, protected at Thirty-first street by the usual boulevard stop signs. The plaintiff was a passenger in a Chevrolet sedan owned and driven by Hamilton Hall. According to the view of the evidence most favorable to the plaintiff, Hall stopped his car for the so-called boulevard stop sign as he was approaching Cedar avenue from the west on Thirty-first street. The weather was misty, and the plaintiff testified that there were no car headlights to their right on Cedar avenue nearer than three-quarters of a block. They proceeded to cross Cedar avenue and were struck by the defendant's Nash car as he was driving in a northerly direction on the avenue. The collision occurred in the southeast quarter of the intersection, and from the damage to the cars the jury might well draw the conclusion that the Chevrolet was struck well back on the right side. According to the testimony it is probable that Hall did not see the defendant's car approaching until the moment of impact. The collision was so violent that the Chevrolet car was thrown across Thirty-first street and collided with the boulevard stop sign on the east side of Cedar avenue and was thence thrown 15 to 25 feet easterly thereof and somewhat to the north, coming to a stop, wrong side up, and resting upon the front of the top and the radiator. Plaintiff was lying under the rear end of the car. The Nash car was thrown northerly on Cedar avenue and landed just outside of the east curb on the north side of Thirty-first street and facing south. There were four people in the Nash car and two in the Chevrolet. Both the plaintiff and Hamilton Hall were shocked into unconsciousness and know nothing of events subsequent to the impact. It is claimed that Hall does not recall the events immediately prior thereto.
1. Plaintiff testified that defendant's car struck the Chevrolet to the rear of where she was sitting. The damage to the car tends to support her testimony. It was the claim of the defendant that the Hall car did not stop for the boulevard stop sign and that it was coming at a high rate of speed into the intersection when defendant first observed it, too late for him to avoid the collision. It is the claim of the defendant that there was no evidence from which the jury could find him negligent. We think that the character of the damage to the two cars and the violence of the collision was such as entirely to refute the defendant's claim that he was traveling at a moderate speed. This conclusion is supported by the plaintiff's testimony as to the distance of the nearest lights to the south when Hall was at the west side of Cedar avenue. It was defendant's claim that as he approached the intersection he was traveling not to exceed 25 miles per hour and entered it at not over 15 miles per hour, that he was not going over five miles per hour at the moment of the collision. Obviously no such result as occurred would ensue from his striking the Chevrolet at five miles per hour. The jury might well have drawn the conclusion that he was going at a much higher rate of speed and that he approached the crossing without the exercise of ordinary care.
2. If the plaintiff's story is to be believed, she is free from contributory negligence and the defendant's negligence was a question for the jury. There is nothing in the admitted facts or those conclusively proved that compels the rejection of her testimony as inherently improbable. If no car was nearer than three-quarters of a block, plaintiff as a passenger was certainly not guilty of negligence in failing to warn Hall of approaching vehicles.
3. The boulevard stop signs do not require cars to enter the arterial street at their peril but only to...
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