Lindgren v. Sparks

• Decision Date: 01 May 1953
• Docket Number: No. 35888,35888
• Citation: 58 N.W.2d 317,239 Minn. 222
• Court: Minnesota Supreme Court
• Parties: LINDGREN v. SPARKS et al.

Page 317

58 N.W.2d 317

239 Minn. 222

LINDGREN v. SPARKS et al.

No. 35888.

Supreme Court of Minnesota.

May 1, 1953.

Syllabus by the Court

1. The purpose of Rule 56 of the Rules of Civil Procedure authorizing the entry of summary judgment is to afford procedure for the just, speedy, and inexpensive disposition of actions. Where it is made to appear that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law, summary judgment should be ordered.

2. An automobile was standing on the wrong side of a well-traveled highway partly on the shoulder and partly on the pavement. Its headlights, on low beam, were shining diagonally across the road. Behind the automobile was a second automobile in the ditch; the automobiles were five or six feet apart. They were attached together by a tow chain. Plaintiff, while stationed between the two automobiles assisting in the removal of the tow chain, was injured. Held that under the circumstances here shown plaintiff assumed the risks incident to the dangers of the position which he voluntarily took and was therefore guilty of contributory negligence as a matter of law, barring recovery.

Stetson & Jacobson, Minneapolis (Robert W. Johnson, Anoka, of counsel), for appellant.

Robb, Robb & Van Eps, Minneapolis, for respondent.

DELL, Justice.

This is an appeal from a summary judgment entered in favor of the defendant George Sparks and from an order denying plaintiff's motion for amended findings in his favor or for a new trial.

Shortly after midnight on January 1, 1951, plaintiff's automobile, which was proceeding in a southerly direction on highway No. 65, left the highway and went into the ditch on the west side of the road at a point approximately one-half mile north of the intersection of highway No. 65 with highway No. 10. Sparks, a friend of the plaintiff, approaching with his automobile on highway No. 65 from the south, learned of plaintiff's predicament and volunteered to assist plaintiff in an effort to remove his automobile from the ditch. Highway No. 65 consisted of pavement 18 feet in width with shoulders approximately eight feet in width on either side of the pavement. The highway was straight and level for at least one-half mile north from the point where plaintiff's car slid into the ditch.

Sparks drove his automobile over onto the left or west side of the highway and stationed it so that the rear end of his automobile and the rear end of plaintiff's automobile were approximately six feet apart. A tow chain was then attached to the rear bumper of each automobile, and while it was so attached, Sparks made several attempts to pull plaintiff's automobile out of the ditch. The effort was unsuccessful and the plan was finally abandoned.

Both the plaintiff and Sparks then went in between the rear ends of the two automobiles for the purpose of disconnecting and removing the tow chain from the automobiles. At that time the two left wheels and the right rear wheel of the Sparks automobile were standing on the west shoulder of the road, and the right front wheel of the Sparks automobile was standing on the pavement approximately two or three feet in from the west edge of the slab. The Sparks automobile was facing in a northeasterly direction at an angle of approximately 35 degrees to the road so that its headlights, which were on low beam, were shining diagonally across the road. There were no lights on the plaintiff's automobile. The plaintiff's automobile was facing in the opposite or southwesterly direction. While the tow chain was being removed the rear ends of the two automobiles were approximately five feet apart. No flares had been placed on the highway nor had any means been employed to warn oncoming traffic of the hazardous condition created by the presence of the automobiles standing as they were on the west side of the road other than the headlights on the Sparks automobile. The highway at that point was very icy, which condition was known to both the plaintiff and defendant Sparks. It was sleeting and visibility was very poor. While they were removing the tow chain and replacing it in the trunk of the Sparks automobile, the lid to the trunk was raised and to some extent it obscured the view of the plaintiff and Sparks to the north. After the chain had been replaced in the trunk and while the lid of the trunk was being lowered, the plaintiff saw the lights of an approaching automobile from the north and called out to Sparks either 'Jump George' or 'Look out, that car is going to hit us.' Before either of them could get out of the way, the oncoming automobile, driven by the defendant Clifford W. Lindberg, struck the front end of the Sparks automobile, driving it back against both the plaintiff and Sparks resulting in injuries to plaintiff's leg as the two rear bumpers of the automobiles came together.

Plaintiff instituted action against the defendant Sparks and the driver of the oncoming car, defendant Lindberg, claiming that his injuries were due to the negligence of both defendants. Sparks answered, denied that he was negligent, and alleged assumption of risk and contributory negligence as to the plaintiff. Lindberg did not answer and remained in default. Under Rule 26 of the Rules of Civil Procedure, depositions of the plaintiff, both defendants, and defendant Lindberg's wife were taken. On March 17, 1952, there was a pre-trial conference at which conference the parties stipulated that the headlights of the Sparks automobile were on low beam at the time of the accident.

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