Larson v. Degner

• Decision Date: 20 July 1956
• Docket Number: No. 36830,36830
• Citation: 78 N.W.2d 333,248 Minn. 59
• Parties: Ruth E. LARSON, Respondent, v. Luella DEGNER, a/k/a Mrs. Frank Degner et al., Appellants, H. E. Wurm, d/b/a Wurm Chevrolet Co., Respondents.
• Court: Minnesota Supreme Court

Page 333

78 N.W.2d 333

248 Minn. 59

Ruth E. LARSON, Respondent, v. Luella DEGNER, a/k/a Mrs. Frank Degner et al., Appellants H. E. Wurm, d/b/a Wurm Chevrolet Co., Respondents.

No. 36830.

Supreme Court of Minnesota.

July 20, 1956.

Syllabus by the Court.

1. An assignment of error that the lower court erred in refusing to grant a new trial is insufficient to raise any question other than whether the evidence justifies the verdict or finding. While defects in the assignments of error cannot properly be corrected in a reply brief, since the questions raised by the appellant were fully briefed and argued by the respondents and in view of our discretion, we have considered all the questions raised on the appeal.

2. Looking to the record in its entirety there is ample evidence from which the jury could reasonably conclude that the sole and only proximate cause of the accident in the instant case was the negligence of the defendant Degner.

3. Under Rule 49.01 of Rules of Civil Procedure, when a case is submitted to the jury on a special verdict, if a party is of the opinion that the questions proposed do not adequately cover the case, he may propose additional ones for submission to the jury, if he does so before it retires; otherwise he waives his right to a trial by jury on such issues.

4. While in the instant case it appears that there were two collisions, the first a head-on collision of considerable force, and the second a collision from behind of much less significance, a fair and impartial reading of the record in its entirety as well as the instructions to the jury clearly indicates that the only collision in issue and the only one upon which the jury was to base its verdict was the first or head-on collision.

5. Where a case is submitted to the jury on the theory that there was but one collision and the jury finds that the negligence of one of the defendants was not a proximate cause of the collision, then such negligence could not be considered the proximate cause of the injuries resulting from the collision itself.

6. Upon the record here, Held that the verdict is not excessive.

Affirmed.

Lauerman, Johnson & Gustafson, Olivia, for appellants.

Nelson, Rendahl, Broberg & Peterson, Minneapolis, for plaintiff-respondent.

Earle F. Tighe, Redwood Falls, for respondents Wurm and Wittwer.

DELL, Chief Justice.

This is an action instituted by the plaintiff to recover for personal injuries and property damage arising out of a collision involving automobiles operated by the plaintiff, the defendant Ronald Degner, and the defendant Kenneth Wittwer.

The collision occurred on June 5, 1954, at about 2:30 p.m. approximately a mile and a half east of the village of Bird Island on Highway No. 212. Plaintiff, a registered nurse employed as a nursing instructor at Bethesda Hospital in St. Paul, was driving her 1954 Chevrolet automobile in an easterly direction upon said highway. Riding with her as a passenger was Genieva Gerischer. Just east of the outskirts of the village plaintiff overtook and passed an automobile driven by defendant Wittwer and owned by defendant Wurm Chevrolet Company. Wittwer's speed at that time was between 15 and 20 miles an hour. On passing Wittwer plaintiff continued east in the south lane. After traveling a short distance, both the plaintiff and her passenger noticed that Wittwer was following quite closely behind them at a distance estimated to be approximately 10 to 15 feet. Both cars were then traveling at a speed of approximately 40 to 50 miles an hour. Wittwer, however, estimated that the distance between the two vehicles was five car lengths or approximately 90 feet.

While plaintiff and Wittwer were so proceeding, a 1947 Oldsmobile owned and operated by defendant Degner approached from the east traveling in a westerly direction along said highway. Plaintiff first noticed Degner when he swung out in an attempt to pass another automobile traveling ahead of him on the highway. She estimated that he was then two to three car lengths directly in front of her in the south lane. Degner accelerated his car in an effort to pull back into his own lane ahead of the vehicle he was passing but was unable to do so, and the left front end of his car struck the left front end of the plaintiff's car.

At the time of the collision Degner was traveling at an estimated speed of 50 to 60 miles an hour. Plaintiff's passenger testified that immediately before the collision she turned around in her seat and noticed Wittwer still 10 to 15 feet behind them. Plaintiff said that just prior to the collision Degner's entire vehicle was over in the south lane and that it seemed to be heading straight for her. She sounded her horn and attempted to and actually did get about half her automobile off from the highway and onto the south shoulder in an effort to get out of his way. The impact with the Degner car spun plaintiff's automobile around counterclockwise and back into the path of Wittwer. From debris and glass lying on the highway the point of impact was estimated to have been approximately two or three car lengths to the east of the place where plaintiff's automobile came to rest.

Prior to the collision Wittwer, sensing that an accident was imminent, applied his brakes and headed for the south ditch in an effort to avoid becoming involved in it. However, he was not successful, and the front end of his automobile collided with the left front corner of plaintiff's automobile and his vehicle came to rest with its right front wheel in the ditch, about one or two feet from the left rear fender of plaintiff's car. At the time that Wittwer collided with plaintiff's vehicle he estimated his speed at 5 to 10 miles an hour.

Plaintiff's automobile ended up facing across the highway in a northerly direction with its rear end on the south shoulder and with its front wheels on the pavement. After the initial impact Degner's automobile scraped along the left side of plaintiff's automobile and then slid sideways in a westerly direction past the left side of the Wurm automobile. It ended up in the ditch on the south side of the road facing east at a point approximately 100 feet west of the Wurm automobile. The pavement of Highway 212 at the point of the collision was approximately 20 feet wide and the shoulder to the south of the highway about 10 feet.

Dr. A. O. H. Setzephandt, who arrived at the scene shortly after the collision, as well as defendant Wittwer, testified that Degner admitted at that time that the accident was his fault. Degner did not deny making the admission but stated that he didn't remember what was said.

The case was submitted to the jury for a special verdict upon interrogatories rather than under a general verdict. The jurors were asked to find and determine whether each of the drivers was negligent, and if so, whether such negligence was a proximate cause of the collision. The jury, by its special verdict, found that the defendant Degner was negligent in the operation of his automobile and that his negligence was a proximate cause of the collision; that defendant Wittwer was negligent in the operation of the Wurm automobile but that his negligence was not a proximate cause of the collision. It further found that the plaintiff was not negligent in the operation of her automobile and that as a result of the accident she had incurred special damages in the sum of $1,947 and general damages in the sum of $3,375. The court thereupon, as conclusions of law, ordered that plaintiff have judgment against the defendant Ronald Degner in the sum of $5,322; that defendants Wurm and Wittwer have judgment in their favor as to plaintiff's cause of action; and that defendant Wurm should not recover on a cross-claim which he had interposed against the defendant Degner. The defendant Degner thereupon moved in the alternative for judgment notwithstanding the verdict or a new trial and from the order denying his motion this appeal was taken.

1. In his alternative motion in the lower court for judgment notwithstanding the verdict or a new trial, Degner set forth six grounds of error. On this appeal, however, his brief contains but one assignment of error, to wit: 'The District Court erred in denying appellants' Motion for a new trial of all issues in the case.' An assignment that the lower court erred in refusing to grant a new trial is insufficient to raise any question other than whether the evidence justifies the verdict or finding. ¹ Degner sought to correct this defect by inserting the necessary assignments of error in his reply brief. While of course this is not proper practice and is not to be permitted, we have decided that, since the questions raised by Degner have been fully briefed and argued by the respondents ² and in view of our discretion ³ we will consider all questions raised on the appeal.

2. Degner contends that the verdict finding that, even though Wittwer was negligent, his negligence was not a proximate cause of the collision, is not justified by the evidence. He argues that plaintiff, upon seeing his automobile directly in front of her and approaching in her lane of traffic, was afraid to apply the brakes on her automobile too suddenly because she realized that Wittwer was following so closely behind. Thus he contends that the accident was caused, at least in part, by the inability of the plaintiff to stop her automobile as quickly as she might have been able to do, and this he asserts was attributable to Wittwer's conduct in following too closely behind the plaintiff's vehicle. It must be noted, however, that the Only suggestion that there was any hesitancy to fully apply the brakes on plaintiff's automobile was in the testimony of the plaintiff's passenger, Miss Gerischer. However, Miss Gerischer testified only that She was 'afraid of braking,' not that the plaintiff, the driver of the automobile, was afraid of fully applying her brakes. To the contrary, on...