Kmetz v. Johnson

• Decision Date: 05 January 1962
• Docket Number: No. 38162,38162
• Citation: 113 N.W.2d 96,261 Minn. 395
• Parties: Florence KMETZ and Michael Kmetz, Appellants, v. George M. JOHNSON, Respondent.
• Court: Minnesota Supreme Court

Page 96

113 N.W.2d 96

261 Minn. 395

Florence KMETZ and Michael Kmetz, Appellants, v. George M. JOHNSON, Respondent.

No. 38162.

Supreme Court of Minnesota.

Jan. 5, 1962.

Syllabus by the Court

1. A jury is not required to accept the testimony of a witness in toto. It may accept part of the testimony of a witness and reject part where there is reason to disbelieve it.

2. Where the physical facts are so inconsistent with the testimony of a party that an accident could not have happened as the party contends it did, a jury is justified in rejecting such party's version of the accident.

3. A pedestrian having a right-of-way in crossing a street or highway is not absolved of the duty of exercising due care for her own safety.

4. Whether the pedestrian crossing the street or highway was guilty of failing to exercise due care under the evidence in this case presented a fact issue for the jury's determination.

5. Where the jury in a special verdict found defendant guilty of negligence on one ground constituting a proximate cause of a collision with a pedestrian, erroneous failure to submit other possible grounds of negligence was harmless.

6. Where documentary evidence can be procured by a party to litigation by pretrial discovery or by a demand at the trial, no unfavorable inference may be drawn from an opponent's failure to produce it.

Silver, Goff, Ryan, Wallace & Newcome, St. Paul, for appellants.

Miley, Marveson & Williams and David W. Nord, St. Paul, for respondent.

KNUTSON, Justice.

This is an appeal from an order of the trial court denying plaintiffs' motion to amend a special verdict, for judgment in their favor notwithstanding the special verdict, or for a new trial.

The action arises out of a collision between an automobile driven by defendant and a pedestrian, plaintiff Florence Kmetz, on April 19, 1958, between 8:30 and 9 p.m., on U.S. Highway No. 61 in the village of Wyoming, Minnesota. At the point of the accident, Highway No. 61 runs substantially north and south. It consists of a tarviasurfaced road approximately 24 feet in width. On the east side, between the sidewalk and the traveled portion of the highway, at the point of the accident, there is a shoulder approximately 15 feet in width.

Plaintiffs' and defendant's versions of how the accident happened are completely in conflict. Florence Kmetz testified that she and her husband were in a hotel and store on the northeast corner of the intersection near which the accident occurred. She had a bottle of 7-Up and a 'shorty,' which consisted of an 8-ounce bottle of beer. They left the hotel by the west door of the building and proceeded to the crosswalk, intending to pass over the highway from east to west. She said that she and her husband stood on the shoulder, off the traveled portion of the highway about 3 or 4 feet, looked south and saw a car coming, and then looked north and saw a car approaching from that direction. At the time of the trial she testified that the lights of the southbound car were not blinding to her and she said that, as she watched that car approaching, 'all of a sudden I was gone.' She testified that her husband held her left arm with his right hand and that she was 1 or 2 feet west of him. Plaintiff Michael Kmetz was not struck by the car. He corroborated her story. The testimony of both Mr. and Mrs. Kmetz was impeached in substantial matters by pretrial statements they had made.

A highway patrolman, Richard Webster, testified that during the early morning of the day after the accident, at the hospital, Mr. Kmetz told him that as they approached the highway, intending to cross from east to west, he had hold of his wife's arm to assist her down the sidewalk and curb and across the highway and that when they reached a point near the east edge of the traveled portion of the highway, and some distance north of the crosswalk, Mrs. Kmetz pulled away from him and started to run across the highway and was struck by defendant's car. He testified that he measured skid marks made by defendant's car and that they were on the northbound lane of the traveled portion of the highway.

In pretrial statements made by Mrs. Kmetz, she stated that the car coming from the north had blinding bright lights.

Defendant's version of the accident is that as he drove his car in a northerly direction on the northbound lane of the highway another car was approaching from the north with blinding lights and that he did not see Mrs. Kmetz until immediately before he struck her. He then saw her in front of the left side of his car. The only evidence of any impact shown on the car consisted of a dent on the left front near the cowl and two shiny spots on the left front bumper. After the impact, Mrs. Kmetz was found on the west or southbound lane of the highway. Defendant testified that Mrs. Kmetz was north of the crosswalk, standing in the road near the centerline at the time of the collision, and that Mr. Kmetz at that time was standing off the highway to the east.

The case was submitted to the jury on special verdicts. The jury found that defendant was not guilty of negligence with respect to lookout but was guilty of negligence with respect to failure to yield the right-of-way and that such negligence constituted a proximate cause of the accident. It also found that Mrs. Kmetz was not guilty of negligence with respect to right-of-way but was guilty of negligence with respect to lookout and that such negligence was a proximate and contributing cause of the accident. As a result of these findings, it would follow that plaintiffs were not entitled to recover.

Plaintiffs assign as error failure of the court to submit to the jury questions relating to the negligence of defendant on account of the speed at which he was traveling and other errors with respect to the establishment of defendant's negligence. They also assign as error the ruling of the court excluding comment on defendant's failure to produce certain photographs which will be hereinafter discussed.

Implicit in the jury's verdict is a finding that Mrs. Kmetz was in the crosswalk so that she had the right-of-way but that she failed to exercise reasonable care in keeping a lookout for approaching traffic. Plaintiffs contend that, in view of the fact that the jury found that Mrs. Kmetz had the right-of-way, it must have accepted her version of how the accident happened and that, if it did, its finding that she failed to keep a proper lookout, which proximately contributed to the accident, is not supported by the evidence.

1. The fallacy of plaintiffs' reasoning is in assuming that the jury was required to accept in toto the testimony of either plaintiffs or defendant. The jury could accept as much of the testimony of either party as it believed to be true. The testimony of Mr. and Mrs. Kmetz was so far impeached by inconsistent pretrial statements that the jury could well and understandably reject much of it as untruthful. In Kundiger v. Prudential Ins. Co., 219 Minn. 25, 29, 17 N.W.2d 49, 52, we dealt with the question of whether a jury must accept all or none of the testimony of certain expert witnesses and said:

'* * * the jury was not required to accept or reject the testimony of each expert In toto; his testimony, Like that of any other witness, could be believed in part and disbelieved in part.' (Italics supplied.) ¹

2. The physical facts with respect to the markings on the car showing the point of impact, if accepted by the jury, would make it impossible for the accident to have happened as plaintiffs claim it did. The only markings on the car, as testified to by the police officers and as shown by photographs, appeared on the left front bumper and left side of defendant's automobile. If the jury accepted that as the truth and was convinced that the left front portion of the car struck Mrs. Kmetz, it is understandable how it could reject much of plaintiffs' testimony. The position of Mr. and Mrs. Kmetz was such that the car could not have struck Mrs. Kmetz on its left front side and have missed her husband if they were standing on the shoulder of the highway, off the traveled portion, as they claim they were. A verdict cannot rest on evidence that is so contrary to established physical facts that it would have been impossible for the accident to have happened as claimed according to such evidence. Reiter v. Porter, 216 Minn. 479, 13 N.W.2d 372; Cofran v. Swanman, 225 Minn. 40, 29 N.W.2d 448. The physical evidence, coupled with pretrial statements of Mr. and Mrs. Kmetz, furnish ample justification for rejection of much of their testimony by the jury.

3. Viewing the evidence in the light most favorable to the verdict, as we must on appeal, taking into consideration the location of the skid marks on the northbound traveled portion of the highway; the marks on the left front of the car; and defendant's testimony as to where he first saw Mrs. Kmetz and the location of her body after the accident, the jury had ample basis for a finding that Mrs. Kmetz was on the highway near the center. It could accept her testimony that she was in the crosswalk when she left the sidewalk and reject the balance of her testimony as unworthy of belief. Whether Mrs. Kmetz failed to keep a proper lookout for approaching automobiles at or immediately before the time of the collision presented a fact issue for the jury. We have held in many cases that even though a pedestrian, crossing a street in a crosswalk, has the right-of-way over approaching vehicles, he is not absolved from the duty of exercising reasonable care. ²

In Becklund v. Daniels, 230 Minn. 442, 445, 42 N.W.2d 8, 10, we said:

'The law is clear that plaintiff was not absolved from the duty of exercising ordinary care for his own safety merely because he was on the crosswalk and had the right of way. * * * A pedestrian has a right to assume that a driver at an intersection will respect his right of way, but this cannot be turned...