Kedrowski v. Czech, 36457

• Decision Date: 04 March 1955
• Docket Number: No. 36457,36457
• Citation: 244 Minn. 111,69 N.W.2d 337
• Parties: (Simon Kedrowski) Raymond KEDROWSKI, Executor of last will of Simon Kedrowski, deceased, substituted as respondent, Respondent, v. Ben CZECH and Hubert Czech, Appellants.
• Court: Minnesota Supreme Court

Page 337

69 N.W.2d 337

244 Minn. 111

(Simon Kedrowski) Raymond KEDROWSKI, Executor of last will of Simon Kedrowski, deceased, substituted as respondent, Respondent, v. Ben CZECH and Hubert Czech, Appellants.

No. 36457.

Supreme Court of Minnesota.

March 4, 1955.

Syllabus by the Court.

1. On appeal from the judgment where there is no motion for a new trial, the only question for review by the appellate court is whether the verdict is reasonably supported by the evidence. When an appellant moves the court below for judgment notwithstanding the verdict, there is admitted for the purpose of the motion the credibility of the evidence of the adverse party and every inference which may fairly be drawn from such evidence. That view of the evidence most favorable to the adversary must be taken, and the only question for consideration is whether it clearly appears from the record that plaintiff is not entitled to recover. The court in its review must confine itself to the question of whether the verdict in favor of the plaintiff is reasonably supported by the evidence under any applicable theory of law, testing the evidence by admitting the credibility of the plaintiff's witnesses and viewing the evidence in the most favorable light.

2. If plaintiff was under the influence of liquor, it was competent to show impairment of his powers of observation, if any, and the likelihood of impaired recollection. On the question of his contributory negligence, if his intoxication in any degree contributed proximately to his injury, it was admissible as evidence of contributory negligence; but unless it did so contribute or unless he failed to exercise the degree of care required of a sober person, the mere fact that he may have been under the influence of alcohol did not in and of itself constitute contributory negligence. The conflict in the testimony is such on the question of intoxication that the trial court properly left its determination as a fact question to the jury.

3. Viewing all the circumstances surrounding the collision there was evidence from which the jury could reasonably find that the sudden stopping of plaintiff's car at a point where it straddled the middle of a county road when the car's lights had suddenly failed on a moonless night and that plaintiff's failure to remove it upon effort (and while being alone) from that position did not violate M.S.A. § 169.32 for the reason that the car was disabled, and that it was not reasonably practicable for him to remove it from its position upon the road up to the time the collision occurred. There was evidence from which the jury could find that the plaintiff's car was disabled within the meaning of the protective provision of the statute. There was likewise evidence from which the jury could also reasonably find that even if certain acts or omissions of the plaintiff were negligent they were not the proximate cause of the collision, defendant driver's negligence having intervened, insulating any prior negligence of the plaintiff and reducing it to a mere occasion or condition.

4. There was evidence on which the jury could reasonably make a finding that the plaintiff was not guilty of contributory negligence in remaining by the hood of his standing car until immediately preceding the occurrence of the collision.

5. It is only in the clearest of cases, where the facts are undisputed and it is plain that all reasonable men can draw but one conclusion from them, that the question of contributory negligence becomes one of law for the court.

King & MacGregor, Minneapolis, for appellants.

Harry E. Burns, Sydney A. Gross, St. Cloud, for respondent.

NELSON, Justice.

Plaintiff brought this action to recover damages to his person and his automobile arising out of a collision between defendants' car and that of the plaintiff. The defendants counterclaimed for car damages. At the close of the testimony, defendants moved for a directed verdict on the ground that plaintiff was contributorily negligent as a matter of law and therefore not entitled to recover. The motion was denied by the trial court. The jury returned a verdict in favor of plaintiff for $7,143. Judgment was entered thereon, and defendants appeal from the judgment.

Viewing the testimony in the light most favorable to the plaintiff, since the most favorable aspect must be ascribed to plaintiff's evidence, it appears that the accident occurred December 18, 1952, at about 7:30 p.m. The night was clear, but no moon was in sight. The plaintiff, a machinist by trade, who was 56 years of age at the time, was driving his Ford automobile in a northerly direction on a county graveled road toward the village of Opole, in Stearns county, traveling at a speed of approximately 30 miles per hour. As he approached the intersection of this road with the St. Stephens county road, the car lights suddenly went out without any prior warning. He found himself in darkness and he could not see the roadbed. Becoming excited, he immediately slammed on the brakes as he thought he was going off the right shoulder; then he pulled to the left and came to a stop in the middle of the road just beyond the intersection with the St. Stephens road, his car facing 'west north.' The motor was dead when he came to a stop. He tried to get the car off the road with the starter but it wouldn't work. He then raised the hood, checked the wiring, and used extra fuses. The lights came on twice, turned blue, and went out.

A car approached traveling in a southerly direction; he signaled it with his flashlight; it slowed down but did not stop in passing by his standing car. Just at what point in his attempts to find the trouble this occurred is not clear from the testimony. After this car had gone by he dropped his flashlight and broke it. He then tried to push the car off the road but was unable to move it.

Plaintiff next got out a trouble light that was wrapped in a bundle and tried to unwrap it. While doing this, he saw the defendants' car approaching from the south a quarter of a mile away and again when it came into sight about 400 feet away. In the meantime he continued his efforts to get the trouble light into operation while watching this car approach. His testimony is that he was standing on the north side of his car near the hood as he saw defendants' car swing to the west side of the road, and that, when he saw the defendants' car about 25 feet away swing back toward the east side of the road instead of passing on the west side, he turned and ran straight up the road to the north. He then turned to the left when he heard the crash and it was then he was hit by the defendants' car.

The plaintiff testified that the car driven by the defendant Ben Czech was traveling 35 to 40 miles per hour and that he did not slow down as he approached the stalled car. The width of the road at the point where the plaintiff's car came to a stop was 33 feet. The stalled car straddled the approximate center of the road. Plaintiff testified that there was plenty of room, about eight feet, on the west side for a car to go by; that just a few feet to the south of the stalled car on the east side of the road there was the dead-end intersection of the St. Stephens road with this road and on the west side of the road at the point of this intersection there was a driveway into a pasture. The plaintiff admitted that he was thoroughly familiar with this road area and intersection as did the defendant Ben Czech. There was no explicit testimony regarding the presence of ruts in the road, but the defendant Ben Czech testified that cars on this road traveled in one track or lane.

The defendant Ben Czech was the sole occupant of the other car. He testified that the plaintiff was standing between his stalled car and the west side of the road so that he could not pass on that side and was forced to turn back to the right when 25 feet away, that is to the east side of the road. There is a conflict in the testimony between plaintiff and this defendant as to where the plaintiff was standing when the defendant driver claimed that he was forced to turn back to the right after having first turned to the left in approaching the stalled car. There is testimony that the lights on the defendants' car were in good working order and that there was good vision ahead for at least 200 feet on the night in question. In fact, the defense so admits. The defendant Ben Czech testified that he did not see the plaintiff's car until he was approximately 100 feet away and then traveling from 35 to 40 miles per hour. The testimony indicates that there was no marked slackening of speed on his part before the collision occurred.

After the collision the plaintiff was described as in a sitting position approximately in the center of the road just north of the intersection. He had a broken leg and wrist. He was about three or four feet back of defendants' car and three or four feet closer to the center of the road. The plaintiff pulled himself with his broken leg and wrist some 14 feet over to the door of defendants' car, opened it, and asked to be taken to the hospital in Little Falls, this one being closer than the one in St. Cloud. The plaintiff recognized the defendant Ben Czech right away and told him he thought his leg was broken. Shortly thereafter Vincent and Frank Warzecha arrived by car at the scene of the accident, and the plaintiff again suggested that he be taken to the hospital in Little Falls. A little later the defendant Ben Czech and Vincent and one Claude Warzecha took the plaintiff to the hospital at Little Falls as suggested by him. While on the trip to the hospital the plaintiff talked to them and they said that his talk made sense, that he mentioned his pain and inquired how far they were getting along on the road, that he told them what door of the hospital to take him to because an elevator was located there, and that he also asked for Dr. Glenn Schmitz as his doctor.

De...