Kuether v. Locke

• Decision Date: 08 September 1961
• Docket Number: No. 37895,37895
• Citation: 261 Minn. 41,110 N.W.2d 539
• Parties: Violet V. KUETHER et al., Appellants, v. Edward W. LOCKE, Respondent.
• Court: Minnesota Supreme Court

Page 539

110 N.W.2d 539

261 Minn. 41

Violet V. KUETHER et al., Appellants, v. Edward W. LOCKE, Respondent.

No. 37895.

Supreme Court of Minnesota.

Sept. 8, 1961.

Syllabus by the Court

1. When an automobile is brought to a sudden stop to avoid a dog which has unexpectedly appeared on the highway, and a collision with a vehicle to the rear ensues, the driver of the first automobile is not free from negligence as a matter of law by reason of the emergency. Under such circumstances, the questions of whether the driver of the second vehicle was following too closely or had his automobile under proper control were issues of fact for the jury.

2. Whether a driver making a sudden and unexpected stop has, by activating his brake light, given an appropriate signal in compliance with Minn.St. 169.19, subds. 6 and 7, held a jury question depending upon the circumstances of each case.

3. It is not error to instruct the jury that a driver making a sudden and unexpected stop has a duty to keep a lookout for traffic conditions to the rear.

4. An instruction that the happening of an accident considered alone does not support an inference of negligence on the part of either driver held proper under the circumstances.

Order affirmed.

Dorfman & Rudquist and David McGannon, John Ramstead, Minneapolis, for appellants.

Rich & Johnson, Minneapolis, for respondent.

OTIS, Justice.

The plaintiffs, Violet Kuether and Emil Kuether, appeal from an order denying their motion for judgment on the issue of liability notwithstanding verdicts in favor of defendant, Edward W. Locke, and for a new trial on the issue of damages only, or in the alternative for a new trial on all issues. Mrs. Kuether is hereinafter referred to as plaintiff.

This action arises out of a collision between the rear and of plaintiff's automobile and the front end of defendant's car, occurring October 28, 1957, at approximately 8:30 a.m. on a clear, dry morning. At the time of the accident Mrs. Kuether was driving in a northly direction on Bloomington Avenue, approaching 25th Street, followed by defendant Locke. It appears that in the area involved, Bloomington is wide enough to permit two lanes of traffic in each direction in addition to a parking lane. At the intersection of 25th, Bloomington is a through highway not governed by semaphores. In the block between 26th and 25th an automobile traveling between the plaintiff and defendant moved out of its lane and passed the plaintiff, leaving defendant one or two car lengths behind as the two cars approached 25th. In that block both parties were traveling between 25 and 30 miles an hour. Plaintiff testified that as she approached the intersection of 25th Street, when the front end of her car was a little more than a car's length from the south crosswalk of Bloomington, she saw a dog dart or dash out from behind a building on her right, across the sidewalk and crosswalk, into the street in front of her car, 'just stretched out he was running so fast.' At the same time she noticed three children to her left on the sidewalk at the southwest corner of the intersection and heard them scream. Mrs. Kuether stated that the children stepped toward the street as though to run out for their dog. Her immediate apprehension was that the children might be struck by southbound traffic. She did not worry about hitting them with her own car. However, she was very concerned that she might strike the dog. Consequently, without looking in her rearview mirror, she applied her brakes hard enough to make a sudden stop, or what she called a 'short stop,' somewhere in the south crosswalk of Bloomington, and was thereupon struck from behind by defendant's vehicle within a fraction of a second.

Plaintiff brought this action against defendant for personal injuries she alleges resulted from the collision, and her husband joined in asserting a claim for special damages he incurred. Defendant Locke counterclaimed for property damage to his vehicle. The verdict was for defendant Locke without damages. By the nature of the verdict the jury may have found both drivers negligent or neither.

The plaintiff asserts five assignments of error: That the jury should have been instructed she was free from negligence as a matter of law and that defendant was negligent as a matter of law; that it was error to submit to the jury the question of whether plaintiff complied with Minn.St. 169.19, subds. 6 and 7, governing signals to stop; that it was error to charge the jury that plaintiff was obliged to keep a lookout to the rear and to instruct the jury with respect to unavoidable accident.

1. In reviewing the evidence and the jury's verdicts, we are governed by the fundamental principles we recently restated in Lott v. Davidson, Minn., 109 N.W.2d 336, 341:

'Conflicts in evidence are to be resolved by the jury. We must review the evidence and the inferences to be reasonably drawn therefrom in the light most favorable to the prevailing parties. It is only when different minds can reasonably arrive at but one result that fact issues become questions of law justifying a court in substituting its judgment for the jury. Where, as here, the verdict has the approval of the trial court and it is not manifestly and palpably contrary to the evidence viewed as a whole, it will not be disturbed.'

Essentially all of the assignments of error hinge on the application of our emergency rule. That doctrine has been spelled out repeatedly in recent cases ¹ and was correctly given to the jury in the following language:

'Now you recall in this case that there was evidence of a dog suddenly coming out into the road, and as to these drivers I want to give a rule that we sometimes call a sudden emergency rule: 'A person is not to be deemed negligent when, finding himself without his fault in the face of a sudden danger or emergency, he does not exercise the wisest judgment, nor is his conduct to be judged after the event solely by the result that did in fact occur. One faced with an emergency is bound to exercise only that caution and judgment which could reasonably be expected from an ordinarily prudent person under the circumstances."

Both drivers had the benefit of the rule, although we have no way of knowing how the jury applied it. They may have determined that the rule exonerated both drivers or neither.

This appears to be a case of first impression in Minnesota with respect to an emergency created by the sudden appearance on the highway of a small animal. Plaintiff cites in support of her position Wedel v. Johnson, 196 Minn. 170, 264 N.W. 689. There the defendant struck and killed a horse on the highway, as a result of which some time later the plaintiff was injured in a collision with the carcass. Our court held that by the time the defendant saw the animal it was too late to avoid a collision by putting on the brakes, and that in veering his car to the left he acted as a reasonably prudent driver under the emergency conditions as a matter of law. However, it should be noted that there was no rear-end collision with a vehicle following the defendant, or with any other car or pedestrian in the immediate area.

An important and perhaps decisive distinction in all of these cases is the question of whether a collision with the animal will in itself endanger the occupants of the colliding vehicle and other persons in the area, or whether, because of the size of the animal involved, the only danger is to the animal itself. The authorities are not in accord on the question of whether a driver confronted with an emergency created by the sudden appearance of an animal on the road is exonerated from liability as a matter of law in taking evasive action resulting in an accident. The Wisconsin court has held in two cases that a driver, in swerving to avoid a dog or a cat resulting in injury to passengers or to the driver, is free from negligence as a matter of law. ² The same result has been reached in Maryland, ³ but there the court pointed out that the consequences of hitting or running over the dog might have been even more disastrous than following the course the driver pursued.

Plaintiff places particular reliance on two cases--Cone v. Davis, 66 Ga.App. 229, 17 S.E.2d 849; and McDaniel v. Capitol Transport Co., La.App., 35 So.2d 38. In the Cone case a passenger was injured when a driver traveling on a country road made a sudden stop to avoid colliding with a hog and was struck from behind by the vehicle in which the passenger was riding. The court decided, among other things, that the emergency prevented the driver from giving the statutory signal by holding out his hand and arm because the window was rolled up. The court held as a matter of law that the first driver was not negligent in making a sudden stop to avoid hitting the animal and stated (66 Ga.App. 233, 17 S.E.2d 853):

'* * * If he had not attempted to avoid the consequences of hitting the hog the result might have been more disastrous than that which followed the course he pursued. (Citing Burhans v. Burhans, supra.)'

It is significant also that the court's syllabus states that a driver confronted with a sudden peril is not negligent when he exercises his right to take care of himself and thus avoid death or bodily injury. Much the same fact situation was involved in the McDaniel case except that the plaintiff made a sudden stop to avoid colliding with three cows. The court stated that the driver of the first vehicle acted in the only manner reasonable under the circumstances by reducing his speed to bring it to a stop if necessary. The Louisiana court found no error in a decision in favor of plaintiff.

The rule which we believe should govern the liability of a driver confronted with an emergency created by the appearance of a small animal such as a dog is stated in Massie v. Barker, 224 Mass. 420, 113 N.E. 199. The defendant in that case was driving a truck and as he was about to pass a wagon a...