Kolatz v. Kelly

• Decision Date: 18 March 1955
• Docket Number: No. 36388,36388
• Citation: 69 N.W.2d 649,244 Minn. 163
• Parties: Rudy KOLATZ, Appellant, v. Lawrence J. KELLY, d/b/a Auditorium Parking Lot and Dr. George X. Levitt, Respondents.
• Court: Minnesota Supreme Court

Page 649

69 N.W.2d 649

244 Minn. 163

Rudy KOLATZ, Appellant, v. Lawrence J. KELLY, d/b/a Auditorium Parking Lot and Dr George X. Levitt, Respondents.

No. 36388.

Supreme Court of Minnesota.

March 18, 1955.

Syllabus by the Court.

1. Where one party moves for a directed verdict there must be admitted for the purposes of the motion the credibility of the evidence for the adverse party and every inference which may be fairly drawn from such evidence, and the most favorable aspect must be ascribed to the evidence of the adverse party.

2. A verdict may be directed only in those unequivocal cases where it clearly appears to the court on the trial that it would be its manifest duty to set aside a contrary verdict as not justified by the evidence or as contrary to the law applicable to the case.

3. While the right to direct a verdict also involves the duty to do so, nevertheless, it is a right to be cautiously and sparingly exercised, since in its legal effect it is a determination of the issues by the court without a jury as matters of law. If there is a question of fact, the case should go to the jury, and it becomes reversible error to direct a verdict.

4. M.S.A. § 169.30, which authorizes the establishment of arterial or through highways and stop signs at one or more points at intersections, does not in any way modify other statutes which control right of way and speed. While the operators of cars upon such streets or highways have the right of way by reason of the through street or highway, such operators are nevertheless bound to operate them with reasonable care as to the traffic entering from the side street, for under our existing statutes this court applies the rule that, after a car has once stopped for an arterial highway or through street in response to the stop sign, the motorist having exercised the ordinary and reasonable care required before entering commensurate with the care required under the circumstances, the usual rules in regard to right of way and speed prevail.

5. Stop signs at through highways or at stop street intersections do not require cars to enter the arterial street or highway at their peril but only to obey the statutory requirements of § 169.20, subd. 3, and to exercise ordinary and reasonable care with regard to traffic on the through street or highway before entering thereon. The motorist must, however, make such reasonable observations as the conditions surrounding the intersection will permit before he proceeds across.

6. The driver who has the right of way on the arterial highway or through street by reason of § 169.20, subd. 3, nevertheless, cannot ignore the statute on speed restrictions, § 169.14, subds. 1, 2, and 3; and, if a driver upon an arterial highway or through street travels at an unlawful speed across such highway or street intersection, he forfeits the right of way which he might otherwise have.

7. Due care in looking on the part of a motorist is not measured by the number of times he looks, for there is no rule of law requiring a driver who has looked effectively once to look again, but whether or not there was negligence in failing to do so is for the jury to decide.

8. A motorist entering an arterial highway or a through street must stop and in so doing must recognize and have in that he is inviting approaching vehicles to proceed through the intersection. Once the motorist entering upon the arterial street or highway has stopped and used due care as to vehicles in or near the intersection, he may proceed with the benefit of the right of way and is not negligent if an accident occurs.

9. In the case before us upon the state of the record the question of negligence or of contributory negligence, for an alleged statutory violation is not one of law for the court but a question of fact for the jury. The trial court erred in directing a verdict against the plaintiff holding him guilty of contributory negligence as a matter of law.

Robins, Davis Lyons and Richard Converse and Stanley Nemer, St. Paul, for appellant.

Murnane & Murnane and Thomas Battis, St. Paul, Meagher, Geer, Markham & Anderson, and David W. Nord, Minneapolis, for respondents.

THOMAS GALLAGHER, Justice.

Plaintiff commenced this action to recover for personal injuries and property damage to his automobile sustained when an automobile owned by the defendant Dr. George X. Levitt and driven by one Harvey T. Thompson, and employee of the defendant Lawrence J. Kelly, collided with plaintiff's automobile on the morning of December 19, 1950, at the intersection of Fourth and Market streets in a downtown business area in the city of St. Paul. At the close of plaintiff's evidence, the trial court directed a verdict for the defendants on the ground that the plaintiff was guilty of contributory negligence as a matter of law.

The plaintiff thereafter moved the court below for a new trial and assigned error on appeal upon the following grounds: (1) That the court erred in directing a verdict for defendants for the reason that the issue of plaintiff's contributory negligence was a fact issue for determination by the jury; (2) that the court erred in sustaining defendants' objections to certain questions set forth in plaintiff's motion for a new trial; and (3) that the court erred in denying plaintiff's motion for a new trial, contending on the last assignment that the plaintiff was not negligent as a matter of law; that there was evidence upon which a jury could find that the plaintiff had acquired the right of way over the intersection at the time the collision occurred; and that there is evidence which establishes negligence by defendants' driver proximately causing the accident.

It does not appear that the relationship between defendants Levitt and Kelly is involved in this appeal. The sole and important problem here is the legal issue of whether plaintiff was guilty of contributory negligence as a matter of law which proximately contributed to the collision and his resulting injuries and property damage.

1--2--3. We must, on review, apply the rule that where one party moves for a directed verdict there must be admitted for the purposes of the motion the credibility of the evidence for the adverse party and every inference which may fairly be drawn from such evidence and that the most favorable aspect must be ascribed to the evidence of the adverse party, for a verdict may be directed only in those unequivocal cases where it clearly appears to the court on the trial that it would be its manifest duty to set aside a contrary verdict as not justified by the evidence or as contrary to the law applicable to the case. While the right to direct a verdict also involves the duty to do so, nevertheless, it is a right to be cautiously and sparingly exercised. In legal effect it is a determination of the issues by the court without a jury as matters of law. If there is a question of fact, the case should go to the jury, and it becomes reversible error to direct a verdict. ¹

If the evidence is viewed in its most favorable aspect to plaintiff's claim, the record discloses the following facts and circumstances: The plaintiff was driving his automobile from Kellogg boulevard north on Market street approaching the intersection at Fourth, a through street, in the morning of a perfectly clear day. As he approached the intersection from the south, he came to a stop two to four feet south of the east-and-west crosswalk. He then waited for a streetcar which was traveling east on Fourth street to discharge some passengers near the southwest corner of the intersection and then to proceed through. The passengers crossed Market street in front of his car, and after the streetcar had also crossed Market street, he looked to the left and to the right and then moved his car to a point about three feet inside the intersection and stopped again, looking to the left and to the right for moving cars. Seeing no moving cars in either direction, he started across the intersection. The streets were icy and he drove slowly, going about three or four miles per hour. While plaintiff was so proceeding, another automobile driven by one Rudolph H. Gutzmann approached the intersection from the north on Market street, entering the intersection about three or four feet, then coming to a stop and backing into a parking space on the west side of Market street. This caused plaintiff to slacken his speed, fearing the Gutzmann car might turn to the left in front of him. Plaintiff then looked in both directions again, saw no car coming, and resumed his speed of three to four miles per hour across the intersection. The plaintiff testified that, at the time of this second look after having entered the intersection, the front wheels of his car were across the second rail of the streetcar tracks and he was approximately at the center of the intersection; that, when the hind wheels of his car hit the north rail of the streetcar tracks, defendants' car, driven by one of their employees, crashed into plaintiff's car on the right side.

Rudolph H. Gutzmann, who appeared as one of plaintiff's witnesses and who was the owner of the car which drove slightly into the intersection from the north and then backed up to park, testified that the plaintiff stopped before entering the intersection, estimating the stopping point as 20 to 25 feet south of the intersection; that the plaintiff entered the intersection first; that when he observed the defendants' car coming from the east it was then 150 to 200 feet from the intersection and that this was after the plaintiff's car had entered the intersection and was 'in motion rather, across the street'; that when he saw the plaintiff's car going north across the intersection at about the first rail he then saw the other car somewhere between 50 to 75 feet to the east of the intersection; that he observed the wheels were stationary and that the car was skidding. Gutzmann further testified that after...