Kime v. Koch

• Decision Date: 07 January 1949
• Docket Number: 34736--34740.
• Parties: KIME et al. v. KOCH et al.
• Court: Minnesota Supreme Court

35 N.W.2d 534

227 Minn. 372

KIME et al. v. KOCH et al.

Nos. 34736--34740.

Supreme Court of Minnesota

January 7, 1949

Syllabus by the Court.

1. Where evidence most favorable to prevailing party was that a distance of 400 to 600 feet separated the automobile in which plaintiffs were riding as gratuitous guests and an automobile approaching from the opposite direction which suddenly swung into its wrong lane of the pavement, it was a question for the jury whether the driver of the automobile in which plaintiffs were riding was guilty of negligence.

2. There was no error in the submission of the emergency rule even though it did not follow the precise language of Johnson v. Townsend, 195 Minn. 107, 261 N.W. 859.

Appeal from District Court, Mower County; Martin A. Nelson Judge.

John J. Sexton, of St. Paul, for appellant.

Baudler & Baudler and Luther M. Bang, all of Austin, for respondents.

OSCAR R KNUTSON, Justice.

Defendant Carl Koch appeals from an order denying his alternative motion for judgment notwithstanding the verdict or for a new trial. Originally, separate actions were commenced by each of the five plaintiffs against Carl Koch and Frank McGreary. The cases were consolidated for trial, and the appeals likewise have been consolidated here. Verdicts were rendered by the jury in favor of each of the plaintiffs against both defendants. Only defendant Koch has appealed.

Many of the facts involved are not in dispute. Plaintiffs' injuries arose out of a collision which occurred about 1:30 p.m. on April 2, 1947, between an automobile owned and driven by defendant Koch, in which all five plaintiffs were riding as gratuitous guests, and an automobile owned and driven by defendant McGreary.

Plaintiffs and defendant Koch were all employes of Geo. A. Hormel & Company at Austin. On the day of the collision, the five plaintiffs, together with defendant Koch, left Austin about 1 p.m., intending to go to Grand Meadow, which is located about 23 miles east of Austin, to attend the funeral of a fellow employe. Two of the plaintiffs were riding in the front seat with Koch, who was driving, and the other three were riding in the back seat of the automobile. Koch's automobile was a 1940 Plymouth four-door sedan, in good working condition. In order to reach their destination, they traveled over trunk highway No. 16, which runs generally in an east-west direction. It is paved to a width of 20 feet, with a black tar line down the center, and on each side of the paved portion there is a sod shoulder about 8 to 11 feet in width, level with the pavement. The shoulders slope gradually into a ditch on each side, which is approximately three feet deep on the south side, two and one-half feet deep on the north side, and about eight feet wide, or slightly more. The ditch is grown up to grass and weeds. At the point of the collision and for a considerable distance both east and west therefrom, the highway is straight and comparatively level. There are no obstructions to the view of a driver going in either direction at the point of the collision.

When the Koch car had proceeded about 13 miles east, or slightly northeast, from Austin, defendant McGreary, driving his 1931 Buick automobile, approached from the opposite direction. Witnesses variously estimated that the Koch automobile was traveling from 35 to 48 miles per hour, and the McGreary car was estimated to be going about the same speed. When the McGreary car was first observed, it was traveling on its right side of the road. When the two automobiles were still some distance apart, the McGreary car swung to the south lane of the pavement, that is, to the side of the pavement that was on its left. The principal dispute in the testimony relates to the distance that separated the two automobiles at the time McGreary swung into the wrong lane of the pavement. Defendant Koch and his witnesses testified that the two cars were then only 70 to 80 feet apart. Plaintiffs' witnesses estimated the distance at from 400 to 600 feet.

When the automobiles were very nearly together, Koch turned his automobile to the left into the north lane of the pavement, and at or about the same time McGreary swung his automobile in the same direction, with the result that the two cars came together. They traveled only a very short distance after colliding, and the Koch car ended up on the north side of the pavement almost parallel with the pavement. The McGreary car was some 10 or 12 feet farther to the southwest and on or near the south side of the pavement. All occupants of the Koch car were seriously injured.

While numerous assignments of error have been made by Koch, his principal contention is that the evidence so conclusively establishes the fact that only a short distance separated the two cars at the time the McGreary car swung to the south lane of the pavement that it appears as a matter of law that McGreary created an emergency of such a nature that Koch had no opportunity to avoid the collision and that the injuries sustained by plaintiffs were caused solely and exclusively by the negligence of McGreary. It is the contention of plaintiffs that the jury was justified in finding that the distance that separated the cars when McGreary swung to the wrong lane of the pavement was such that Koch, had he used due care, could have avoided the collision by either swinging onto the shoulder on his side of the highway or driving into the ditch, or by slowing up the rate of his speed to such an extent that it would have enabled the McGreary car to return to its own lane, and, also, that it was negligence on the part of Koch to swing to his left side when the cars approached each other.

It is true that the greater number of witnesses substantiated the theory of defendant Koch, but it is not for us to say where the evidence preponderates. There is evidence, such as...