Kroeger v. Lee

• Decision Date: 08 January 1965
• Docket Number: Nos. 39219,39342,s. 39219
• Citation: 132 N.W.2d 727,270 Minn. 75
• Parties: Lucille M. KROEGER, Respondent, v. Hjalmer Jacob LEE, Appellant, Cooperative Oil Association of Blackduck, Minnesota, Appellant.
• Court: Minnesota Supreme Court

Page 727

132 N.W.2d 727

270 Minn. 75

Lucille M. KROEGER, Respondent, v. Hjalmer Jacob LEE, Appellant Cooperative Oil Association of Blackduck, Minnesota, Appellant.

Nos. 39219, 39342.

Supreme Court of Minnesota.

Jan. 8, 1965.

Syllabus by the Court

1. Evidence reviewed and held to support jury finding that negligence of both defendant drivers concurred in proximately causing an accident.

2. An instruction on intervening cause is not required where the negligence of a second actor resulting in an accident is reasonably foreseeable by the first actor.

3. Evidence considered and held inadequate to support verdict in the amount of $20,000 for personal injuries; affirmance made conditional upon remittitur.

Rosengren, Rufer, Blatti, Hefte & Pemberton, Fergus Falls, for appellant Hjalmer Jacob Lee.

Ryan, Kain, Mangan, Westphal & Kressell and Edward C. Hoffman, Minneapolis, for appellant Co-op Oil Ass'n.

Olson, Kief & Severson, Bemidji, for respondent.

SHERAN, Justice.

The appeal of the Cooperative Oil Association of Blackduck, Minnesota, (hereinafter called the cooperative) from an order of the District Court of Anoka County denying its alternative motion for judgment notwithstanding the verdict or for a new trial, and the appeal of Hjalmer Jacob Lee, codefendant with the cooperative, from the judgment of the district court entered following denial of his motion for a new trial, have been consolidated and present the issues for consideration by this court.

Action was instituted by Lucille M. Kroeger against Lee and the cooperative for personal injuries sustained when a vehicle--owned by Luverne E. Kroeger but admittedly operated by him as the agent of the cooperative--in which the plaintiff was riding as a passenger, was hit from the rear by a vehicle operated by Lee in the city of Anoka, Minnesota, at about 5:30 p.m. on February 6, 1961.

On the day of the accident, Luverne Kroeger, accompanied by plaintiff, his wife, was proceeding from Blackduck to Minneapolis. Near Becker, Minnesota, they came upon a disabled vehicle and undertook to transport the occupants of it--one of whom was evidently quite ill--to the Northern Pacific Hospital in St. Paul, Minnesota. At Elk River they were assured that an effort would be made to secure a police escort from Anoka. Driving easterly on Main Street in that city and approaching the intersection with Fifth Avenue, which runs north and south, they observed a police car coming from the opposite direction. Thinking it to be the anticipated escort vehicle, Luverne Kroeger turned right on Fifth Avenue and came to a stop facing south, near the westerly curb and just south of the crosswalk.

Lee also approached the place of the accident from the east on Main Street. He also observed the police car and his attention was therefore distracted from the traffic ahead of him as he turned to the right. As a consequence he was so close to the Kroeger car when he saw it stopped that, although he was traveling slowly and the two southbound lanes of Fifth Avenue were each 12 feet wide, he was unable to avoid the collision by turning. His attempt to apply the brakes was probably ineffectual.

At the instant of collision, Mrs. Kroeger, sitting in the front on the passenger side of her husband's car, was turned sideways observing the condition of the rear-seat occupants. She was jarred so that her head snapped to one side and then to the other. Although upset emotionally, she felt no physical distress until that night when she had 'a terrific headache.' The following morning her neck was stiff and painful. The Kroegers remained in Minneapolis from Monday evening until the following Friday. Mr. Kroeger attended a convention there. The record gives no account of Mrs. Kroeger's activities during these 4 days. She 'kept taking anacins' and 'figured it was something that would pass over.' After returning to Blackduck, she consulted a Northome physician, Dr. Franklin, who prescribed heat treatments administered over a period of about 10 days. In May she consulted Dr. Lawrence R. Russ, a chiropractor in Bemidji, who treated her on about 60 occasions, giving electrical heat treatments which afforded only temporary relief. In September 1961 she was referred to Dr. Kenneth W. Covey, an orthopedic physician practicing in Crookston, but 24 visits to his office and intensive care during a one-week period of hospitalization in April 1962 have not relieved the pain, disability, and emotional disturbance claimed to have resulted from the accident.

The consolidated appeals raise these issues:

(1) Does the evidence justify a jury finding that the negligence of both drivers concurred proximately to cause the accident?

(2) Did the trial court err in refusing to grant this instruction requested by the cooperative:

'If you find that, as Mr. Lee approached Mr. Kroeger's car, that car was in Mr. Lee's plain sight and in a position of obvious peril for a sufficient length of time to enable Mr. Lee in the exercise of reasonable care to avoid a collision with it, then you can find that his failure to avoid the collision is an efficient, intervening cause of the accident which breaks the natural sequence and progression of the negligence, if any, of Mr. Kroeger as a proximate cause?'

(3) Was the verdict in favor of the plaintiff in the amount of $20,000 so excessive in light of the evidence as to compel a new trial or remittitur?

Defendant cooperative is critical of a part of the closing argument of plaintiff's attorney but no exception was made with respect to it prior to the time the jury retired for its deliberations.

1. The jury's verdict imposing liability on both defendants is justified by the evidence. The place where Mr. Kroeger stopped was marked as a no-parking area and was near an outlet of a busy intersection. It was 'dusk' at the time. The effect of stopping there was not only to obstruct traffic moving from Main Street southerly onto Fifth Avenue but also to create a block in the road which a motorist, turning to the right as he moved through the intersection, might fail to see promptly if, as here, his attention was distracted by traffic within the intersection. To us it seems that the collision which occurred is exactly what Mr. Kroeger should have anticipated. Whether his anxiety to gain the attention of the police officer stopped in the intersection at the time justified this conduct was a jury question. Krafft v. Hirt, 260 Minn. 296, 110 N.W.2d 14, upon which defendant cooperative relies, involves a factual situation so different from that here presented as to make it wholly inapplicable.

Lee's negligence in rear ending the car ahead of him was at least a jury question. See, Souden v. Johnson, 267 Minn. 151, 125 N.W.2d 742.

2. The trial court did not err in refusing the proposed instruction with respect to superseding or intervening cause. For a cause to be superseding, the following elements must be present: (1) Its harmful effects must have occurred after the original negligence; (2) it must not have been brought about by the original negligence; (3) it must actively work to bring about a result which would not otherwise have followed from the original negligence; and (4) it must not have been reasonably foreseeable by the original wrongdoer. See, Minnesota Jury Instruction Guides, Instruction 142, and authorities cited. The collision which occurred was foreseeable by Kroeger as a matter of law. This is so whether his car was stopped within a foot of the curb, as he contended, or 6 or 7 feet from the curb, as Lee testified. It is also true whether Kroeger was stopped only momentarily before the impact, as Lee claimed, or for a period long enough in time to enable Kroeger to get out of the car and close the door, as he recalled the fact to be. In either event his car formed an obstruction to traffic southbound on Fifth Avenue which Lee did not see until avoidance was impossible, and this because, as was reasonably to be foreseen, his attention was diverted to the intersection. In Strobel v. Chicago, R.I. & P.R. Co., 255 Minn. 201, 96 N.W.2d 195, the foreseeability, from the standpoint of an employer who directed his employee to work on a ladder erected on a bridge used for vehicular traffic, of the negligence of a driver in running into the ladder was considered to be a question for the jury. The court there said (255 Minn. 209, 96 N.W.2d 202):

'* * * Although it was reasonably foreseeable that Heilman and other motorists would be driving over the bridge in the lane in which plaintiff had placed the ladder, we cannot hold as a matter of law that it was reasonably foreseeable that Heilman, who entered upon the bridge in low gear at a speed of about 8 miles per hour, and who admittedly killed his motor after driving 50 to 70 feet on the bridge, would drive an additional 200 or more feet (or a total bridge distance of 275 feet) without seeing directly in front of him plaintiff on a ladder in a position of peril without taking steps to avoid the collision.'

The difference between that case and this one comes from the facts that here Lee was driving easterly until he turned to the right just before the impact and that his attention was distracted from the obstruction by the police car. The accident which resulted was precisely of the kind that the specific prohibition against stopping at the outlet of the intersection was designed to avert. In our judgment this collision was foreseeable as a matter of law.

3. We cannot agree that the record supports a verdict in the amount of $20,000 for the personal injuries sustained.

The accident impact, although described as 'solid' and 'forceful,' was between a stopped vehicle and one going no more than 10 m.p.h. It was not severe enough to throw plaintiff against the dashboard, windshield, or any other hard surface in the interior. Repairs to the plaintiff's car cost only $258. Damage to the Lee vehicle was limited to some broken glass in...