Lee v. Zaske

• Decision Date: 20 November 1942
• Docket Number: No. 33146.,33146.
• Citation: 6 N.W.2d 793,213 Minn. 244
• Parties: LEE v. ZASKE et al.
• Court: Minnesota Supreme Court

6 N.W.2d 793

213 Minn. 244

LEE v.ZASKE et al.

No. 33146.

Supreme Court of Minnesota.

November 20, 1942.

Rehearing Denied December 29, 1942.

Appeal from District Court, Otter Tail County; Anton Thompson, Judge.

Action by Lulu C. Lee, executrix of the estate of Theodore L. Lee, deceased, against Minnie Zaske, and Erwin Zaske, to recover for the death of the deceased in an automobile accident.Defendants had verdict, and plaintiff appeals from the judgment after denial of her motion for a new trial.

Judgment reversed, and new trial granted on issue of damages only.

Hugh G. Parker, of Wadena, and Murphy, Johanson & Winter, of Wheaton, for appellant.

William P. Berghuis, of Fergus Falls, and Sexton, Mordaunt, Kennedy & Carroll, of Minneapolis, for respondents.

LORING, Justice.

Action to recover for the death of Theodore L. Lee, who was killed by the defendantMinnie Zaske's automobile on March 8, 1940, while it was being driven by the defendantErwin Zaske.Defendants had a verdict, and plaintiff comes here on appeal from the judgment after denial of her motion for a new trial.

The principal questions presented are whether the court erred (1) in submitting the question of decedent's contributory negligence to the jury; (2) in charging the jury with reference to the emergency rule as applied to the defendant driver's conduct; and (3) whether the evidence compels a finding of negligence on the part of the driver.Consideration of the questions involved is rendered more difficult by the absence of a plat as required by the admonition of this court contained in the printed calendar.Numerous cars were involved in the situation leading up to the fatal accident, and a plat would have been most helpful not only on the argument but in later consideration of the case by this court.Much of the testimony was put in by using toy automobiles on a flat surface.While this may be an easy way of presenting a case of this kind to a jury, it does not make a record intelligible to an appellate court unless positions are definitely fixed on a plat.

The fatal accident occurred at about 7:30 in the evening on highway No. 29 between Deer Creek and Parkers Prairie in Otter Tail county.At this point No. 29 is a black-top highway running north and south.On the evening in question, it bore more than its usual traffic on account of a basket ball game at Parkers Prairie.Numerous cars were traveling south toward Parkers Prairie, and some were traveling north.There was snow to the depth of about 18 inches in the ditches, but the highway was clear and dry.The snow was heavy and crusted hard enough in spots to bear a man's weight.No intersection is involved, but to the north of the place of accident there is a rise in the grade, the crest of which is about one-half mile from the point where the accident occurred.About 15 minutes before Lee was killed, a pick-up truck, referred to in the evidence as the "Fiskum truck," was going north.It had tire trouble and stopped near the scene of the accident partly on the highway.It was being followed by the Wagner car, which was meeting the Streit car at about the same point.Probably blinded by the Streit lights, the Wagner car collided with the Fiskum truck, pushing it forward toward and farther into the ditch on the east side of the road.When the Wagner car stopped it was about 25 feet behind the Fiskum truck and in a position where its left wheels were on the southbound lane.The Streit car was hit by the Wagner car and swung into the east lane.It was tipped on its side with its front toward the north.Other cars from the north swung out onto the west shoulder and stopped.The record is not clear as to their number.The Lee car was among those that reached the scene shortly after the accident.Mr. Lee was driving, and he parked on the west side of the highway either opposite to or about two car lengths north of the Fiskum truck.There is some evidence that his left wheels were on the traveled part of the highway.Lee left his wife in the car and got out to inquire about the people hurt in the Streit car.While this was being done other cars came from the north and passed through the scene of the accident on the west lane.By this time numerous persons had arrived at the scene and parked their cars.Some of them were walking around the cars involved in the accident.It was at this time that two cars approached rapidly from the north, the first the Schendel car and the second the car of the defendant Zaske.Zaske's car was occupied by six people, all on their way to the basket ball game.The people in the two cars were acquainted and had been traveling together for about four miles from the point where Zaske entered the highway.Zaske had passed Schendelat 60 miles an hour.Schendel then passed Zaske going 10 or 15 miles faster.Mrs Zaske then complained of the speed, and Zaske reduced it to 50 miles.All of the persons in these two cars denied that the headlights on the cars facing north on the east side of the highway were lighted.However, some of them did see the taillight on a car on the west side.Someone flagged down the Schendel car, which pulled to the left into the northbound lane of traffic and stopped north of the cars parked on the east side of the road.Zaske, who was following the Schendel car at undiminished speed, passed it on its right and at the same time passed the Lee car on its left, admittedly at a speed of 50 miles per hour.Zaske's brakes were defective and were so found to be by the highway patrolmen who tested them after the accident.The defendantErwin Zaske admitted to the highway patrol officers who tested his brakes that they had never been good at high speeds.These officers, who found that the brakes were fairly effective at 20 to 25 miles per hour but that at 50 miles an hour the car could not be stopped in less than 375 to 400 feet, testified that if the brakes were in normal working order the car should be stopped in 160 feet.When Erwin himself made the brake test he could not stop the car in 400 feet.He denied neither his admissions nor the result of the tests.As he passed the Schendel and Lee cars, Zaske said that he saw a car in the west lane in front of him; that he tried to apply his brakes and when they would not hold he deliberately pulled to the left side of the road toward the ditch.He struck the Streit car a glancing blow and then ran through the snow in the ditch 160 feet farther before he was able to stop.It was while he was crossing the shoulder or the east side of the northbound lane that he struck and instantly killed Lee, who was standing close to the edge of the east shoulder in front of the Streit car.Zaske says that he did not see Lee.The two men with whom Lee was talking just before his death jumped to safety, but in their haste to get out of Zaske's way they failed to observe what Lee did, so there is no evidence whatever as to Lee's actions or conduct except that just before he was struck he was standing in the position indicated and jumped, but in what direction the record does not say.

1.The court submitted to the jury the question whether plaintiff's decedent was guilty of contributory negligence.This we think was error.The contention of defendants that there was connection as cause between the parking of Lee's automobile with its left wheels on the pavement and his death is not well founded.There is not a syllable in the evidence that the place where the Lee car was parked had any effect whatever upon Zaske's conduct or the management of his car.He says himself that he passed the Schendel car and the cars on the other side of the highway under perfect control except as to speed.His car did not touch Lee's car or any car until after he turned off to the left to go between the Wagner and the Streit cars.Nor is there support for defendants' other contention that Lee was negligent in standing where he did.We cannot see how a man of ordinary prudence could reasonably anticipate that any driver would be likely to come speeding through the space between the Wagner and the Streit cars.The burden of proof was on defendants to show that Lee was guilty of contributory negligence, and there is total absence of proof as to what Lee did when he and his two companions first became aware that the Zaske car was headed for them.His two friends, between whom he was standing, jumped and ran in either direction.One of them said Lee jumped, but he did not say in what direction he jumped or where he was when he was struck.The presumption of due care does not vanish in the absence of evidence showing the conduct of the deceased.

2.We come then to the question of sudden emergency.Passing for the moment the error in the tenor of the court's charge on that subject, we will dispose of the question whether any charge at all should have been given on the evidence before the court.It seems obvious to us that the defendantErwin Zaske brought on the emergency by driving into the situation at the speed he did with defective brakes.He had six people in his car, a load considerably heavier than when the brake tests were applied on the following day.His own testimony shows that he was well aware of the defective brakes and knew or should have known that he could not stop in less than 400 feet.He said that he was traveling 150 feet behind the Schendel car when it swung to the left to park in the east lane.Had his brakes been in normal working order and had he then applied them, he should have been able to stop before he reached the Streit car.At worst, he could have so slowed down that Lee would have had time to escape, since, according to the testimony of the experts, at the rate of 50 miles per hour he should have been able to stop in 160 feet if his brakes had been in normal working condition.But, driving as he did, with faulty brakes, he contributed to the emergency with which he was confronted, and hence the...