Lovel v. Squirt Bottling Co. of Waconia

• Decision Date: 08 June 1951
• Docket Number: 35480,Nos. 35479,s. 35479
• Citation: 234 Minn. 333,48 N.W.2d 525
• Parties: LOVEL et al. v. SQUIRT BOTTLING CO. OF WACONIA, Inc., et al.
• Court: Minnesota Supreme Court

Page 525

48 N.W.2d 525

234 Minn. 333

LOVEL et al. v. SQUIRT BOTTLING CO. OF WACONIA, Inc., et al.

Nos. 35479, 35480.

Supreme Court of Minnesota.

June 8, 1951.

Syllabus by the Court.

1. Where children are known or may reasonably be expected to be in the vicinity of a parked automobile or truck, a degree of vigilance commensurate with the greater hazard thereby created is required of the driver of the automobile or truck to measure up to the standard which the law regards as ordinary care.

2. Testimony of plaintiff and his wife that defendant truck driver made statements to them shortly after accident, to effect that he was aware that plaintiff's daughter, a 15-month-old child, was present and playing in close proximity to his parked truck shortly before his departure from plaintiff's premises, which statements were in conflict with his subsequent testimony at trial, that he was unaware of child's presence at that time, were admissible as admissions and created a fact issue for the jury on the question of truck driver's negligence.

3. Cases of O'Neil v. Cochrane, 184 Minn. 354, 238 N.W. 632, and Williams v. Cohn, 201 Iowa 1121, 206 N.W. 823, distinguished.

4. If jury should determine that defendant was aware of child's presence in close proximity to his parked truck shortly prior to his departure, then his failure to sound horn might constitute an element in establishing his failure to discharge the increased obligations of care resting upon him because of such knowledge, and evidence thereof should have been received.

5. Transcript of stenographer's notes of statements made by party does not constitute a written instrument made by such party and admissible as such, but only a memorandum which may be used to refresh recollection of stenographer as a witness, where he has no independent recollection of such statements and such statements are in conflict with later testimony of party.

L. E. Melrin and Leslie C. Scholle, Minneapolis, for appellants.

Moonan, Heinen & Lindmeyer and John M. Fitzgerald, all of New Prague, for respondents.

LORING, Chief Justice.

Action by Janis Jean Lovel, a minor, by Raymond R. Lovel, her father and natural guardian, for personal injuries sustained by her on September 25, 1948, about 4 p.m., at which time she was run into by a truck owned by defendant Squirt Bottling Company of Waconia, a corporation, and operated at the time by defendant M. Stanley Aldridge, who was secretary and treasurer of the corporation. Janis was 15 months of age at the time. An action was also instituted by Raymond R. Lovel in his individual capacity to recover medical expenses incurred as the result of the accident.

The actions were tried together, and at the conclusion of plaintiffs' testimony the court granted defendants' motion for directed verdicts in both cases. This is an appeal from subsequent orders denying plaintiffs' motions for a new trial.

The accident occurred on property belonging to Raymond R. Lovel situated on the southwest corner of the intersection of trunk highway No. 5, running east and west, and state aid road No. 10, running north and south, a few miles southwest of Waconia in Carver county. The weather was fair and visibility good at the time of the accident.

In the northwest part of the building on said premises, Raymond R. Lovel maintains his living quarters. On the northeast corner thereof, he operates a general store and soft-drink and beer tavern. The remainder of the building is used for other purposes. There is an entrance to the basement on the north side near the northwest corner of the building. A ramp, 16 feet in width, extends through this entrance from the basement for a distance of 14 feet to the south edge of the driveway leading to highway No. 5. It is used for beer and soft-drink deliveries and for other purposes. There is a small yard 18.3 X 30 feet on the west side of the building between the store and an adjacent warehouse, in which Janis and her brother, aged 5 years, were accustomed to play. It is enclosed with a picket fence and has a gate on the west side. Northwest of the enclosed yard is an unenclosed grass plot, approximately triangular in shape, which extends to the south edge of the driveway which connects with highway No. 5. The children at times played here also. The accident occurred in this triangular space at a point about 20 to 23 feet west of the ramp and approximately two feet south of the driveway leading to highway No. 5.

For some years, defendant Aldridge had made soft-drink deliveries to Lovel's store each Tuesday. He knew the Lovels had a five-year-old son and a daughter and on previous occasions had seen the boy playing in the driveway and around the truck. On the day of the accident, he was driving a Chevrolet two-ton truck belonging to defendant corporation, which he had stopped facing west in the driveway adjacent to the ramp. He testified that he had given the Lovel boy a ride on a pushcart with which he delivered merchandise and which was ordinarily fastened to the radiator or front of the truck when not in use; that after making his deliveries he returned to his truck and noticed the boy standing on the pushcart; that he then hung it on the truck, walked around to the opposite side thereof to close the doors and returned to the store to make his collections; that about 10 minutes later he returned to the truck and at that time saw the boy standing toward its rear and on its left side at least 10 feet away; and that thereupon, without again walking around the truck, he got into it from the left side, started the motor, placed it in super low gear, and moved it ahead about a foot, when the motor died; that he then went to the front of the truck, where he saw Janis lying on the edge of the grass by the left front wheel; and that he then ran back and got into the truck, started the motor, and backed away about three feet.

Mrs. Viola M. Lovel, mother of the injured child, testified that a few days after the accident Aldridge told her that 'Butchie (her son) took her (Janis) out because he wanted a ride on the pushcart and that Janis and Butch and Eileen (a visiting child) were in the basement running up and down the ramp when he (Aldridge) was delivering pop and were around the truck and that he gave Butch a ride on the pushcart and when he gave Butch a ride on the pushcart Janis and Eileen were down in the basement and when he rolled it up they were around the truck' and that 'after he had hung up the pushcart that Janis was in front of the truck playing on the little wheels on the pushcart' and that later, after making his collections, 'he started the motor and * * * went forward and * * * knew something was underneath the wheel, he didn't know what it was, he thought it was a rock, so, * * * he didn't go out to investigate and he started the motor again and he wouldn't of known what it was underneath the wheel if he hadn't heard me call for Janis.'

Walter Jaekel, a customer of Love, testified that shortly before the accident he had seen Janis and her brother playing at the wheels of the pushcart as it hung on the front of the truck.

Prior to the commencement of these actions, one of plaintiffs' attorneys interviewed defendant Aldridge in the presence of a court reporter who transcribed the questions asked him and his answers thereto. At the trial plaintiffs offered the transcript in evidence, but the offer was rejected. Wherein were set forth statements by Aldridge that he had seen the Lovel boy playing about the gas pumps and in front of the truck shortly prior to the accident; that on previous occasions he had seen Janis about the 'house, in the kitchen'; that he would be able to see a child her size if she were two feet or more in front of the truck; and that he did not sound his horn before starting the truck.

In directing a verdict in favor of defendants, the trial court stated:

'* * * Mrs. Lovel testified, and there is no dispute about it, that Raymond Lovel, her son, sometimes called Butch, let Janis out of the gate through the play yard, which fact at the time was unknown to the defendants in this case and which fact obviously permitted Janis Lovel, fifteen months old child, to get in the obscure position in front of the truck unknown to plaintiff or the defendants * * *. It is undisputed in this case that at the time of the accident Janis Lovel must have been in an obscure position in front of the truck and that the truck did not move more than approximately a foot at the time of the accident.

'* * * In this case the evidence conclusively establishes that the position of Janis Lovel prior to the happening of this accident in front of the truck was such that the driver of the vehicle could not see her. The only evidence in the case establishing her position was that of the testimony of the witness Jaekel, that the fifteen month old child was standing directly in front of the truck next to the dolly attached in front of the truck turning the wheel of the dolly and in a position where it conclusively appears from the evidence in this case, as a matter of law, defendant Aldridge, driver of the vehicle, could not possibly have seen her from his position behind the steering wheel in his truck and, therefore, could not have possibly had any notice of the presence of this young child directly in front and next to the front end of his truck. * * * plaintiffs have offered certain testimony of purported admissions on the part of defendant which they claim creates a fact issue for...