Klare v. Peterson
| Decision Date | 14 November 1924 |
| Docket Number | 24,179 |
| Citation | 200 N.W. 817,161 Minn. 16 |
| Parties | LENA KLARE v. SWAN J. PETERSON |
| Court | Minnesota Supreme Court |
Action in the district court for Hennepin county by the administratrix of the estate of George C. Klare, deceased, to recover $7,500 for his death. The case was tried before Converse, J. and a jury which returned a verdict for the amount demanded. From an order denying his motion for judgment notwithstanding the verdict or for a new trial defendant appealed. Affirmed.
On question of contributory negligence of decedent, jury could find for plaintiff.
1. The presumption that one who lost his life in an accident exercised due care for his safety may be overcome by direct proof or by facts and circumstances which lead to the conclusion that due care was not exercised. Only where the evidence of contributory negligence leaves no room for an honest difference of opinion among reasonable men, is it permissible for the court to direct a verdict for the defendant. Plaintiff's intestate, on entering a street intersection, had the right to assume that the driver of defendant's truck would not violate the law of the road or drive in a negligent manner. The evidence warranted the jury in finding in plaintiff's favor on the issue of contributory negligence.
Positive testimony of eye witness should not be rejected.
2. A court may not disregard the positive testimony of an unimpeached witness, unless it is so improbable or contains so many contradictions as to furnish substantial reasons for concluding that it was false. Applying the rule stated, it is held that the testimony of an eye witness of the accident should not be rejected.
Merriam & Wright and Jamison, Stinchfield & Mackall, for appellant.
Cobb Wheelwright, Hoke & Benson and R. A. Scallen, Courtright, Sidner, Lee & Gunderson, for respondent.
Action for death caused by the wrongful act of Fred Nelson, the driver of defendant's truck. Plaintiff recovered a verdict and defendant appealed from an order denying his motion in the alternative for judgment or a new trial.
The accident happened at the intersection of Franklin avenue and First avenue South in the city of Minneapolis as the deceased was going to his place of work on a motorcycle at about 8 a.m. He was on Franklin avenue and came to the intersection from the east as Nelson came from the south on First avenue. It was Nelson's intention to cross Franklin avenue and go farther north on First avenue. The two men reached the intersection at about the same time and, under the circumstances disclosed by the evidence, the deceased had the right of way. See section 22, p. 164, chapter 119, Laws 1917. There was nothing to obstruct the view of either man. They either saw or could have seen each other as they approached the intersection. The speed of the truck was variously estimated at not less than 15 and not more than 30 miles an hour, and that of the motorcycle at 20 miles an hour. Nelson testified that when he got to Franklin avenue the motorcycle was so near that he feared a collision and, to avoid it, swung the truck to the left, and as he turned west the motorcycle came up to the side of the truck and there was a crash; that he stopped, went back and found the motorcycle against a tree near the northwest corner of the intersection and the deceased lying on the grass between the tree and the sidewalk. The deceased lived 5 days after the accident, but was unconscious all of the time.
Witnesses for the plaintiff testified to facts indicating that the truck began to turn to the left when it reached the south line of Franklin avenue, that it did not keep to the right of the center of the intersection, as required by section 2634, G.S. 1913, and that it collided with the motorcycle and ran against the curb on the north side of Franklin avenue.
1. Defendant's first contention is that contributory negligence on the part of the deceased was conclusively established.
We are asked to apply the rules by which we are guided in considering that contention when made in railroad crossing cas...
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