Lowery v. Clouse

• Decision Date: 16 July 1965
• Docket Number: No. 17808.,17808.
• Citation: 348 F.2d 252
• Parties: Keith LOWERY, d/b/a Lowery Trucking Co., and Leonard Anderson, Appellants, v. Elaine CLOUSE, a Minor, by Vincent Clouse, Her Father and Natural Guardian, Jerome Clouse, a Minor, by Vincent Clouse, His Father and Natural Guardian, and Vincent Clouse, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

348 F.2d 252 (1965)

Keith LOWERY, d/b/a Lowery Trucking Co., and Leonard Anderson, Appellants, v. Elaine CLOUSE, a Minor, by Vincent Clouse, Her Father and Natural Guardian, Jerome Clouse, a Minor, by Vincent Clouse, His Father and Natural Guardian, and Vincent Clouse, Appellees.

No. 17808.

United States Court of Appeals Eighth Circuit.

July 16, 1965.

COPYRIGHT MATERIAL OMITTED

Sheldon J. Gensler, of Schermer & Gensler, Minneapolis, Minn., for appellants.

David A. Bailly, of Cragg & Barnett, Minneapolis, Minn., for appellees Jerome and Vincent Clouse.

Joe E. Thompson, of Johnson, Schmidt & Thompson, Willmar, Minn., for appellees Elaine Clouse and Vincent Clouse.

Before VAN OOSTERHOUT, BLACKMUN and MEHAFFY, Circuit Judges.

BLACKMUN, Circuit Judge.

This diversity litigation arises from a motor vehicle accident which occurred shortly before dawn on December 21, 1962, at an intersection in Kandiyohi County, Minnesota. The jury trial resulted in verdicts against the defendants Lowery and Anderson of $32,300 in favor of Elaine Clouse, of $3,000 in favor of her brother Jerome Clouse, and of smaller amounts in favor of their father, Vincent, and in a verdict adverse to the defendants on their third-party cause of action against Jerome and Vincent.

The issues raised on appeal relate to the trial court's instructions. Accordingly, the facts are not in serious dispute.

The intersection is that of U. S. Highway 71, running north and south, and Minnesota Highway 7, running east and west. Jerome was permissively driving his father's Ford automobile north on the federal highway. Elaine and Constance Lindquist, a high school student, were his passengers. All three were minors. Anderson was driving a trailer-tractor unit, owned by Lowery, east on Highway 7. The two vehicles collided, with the Ford hitting the tractor about three yards back from its front end. Constance was killed in the accident and Elaine and Jerome were injured. The Ford and the semi were damaged.

The collision took place at 7:30 a. m. The sun rose there that day at 7:55 a. m.

Elaine and Jerome instituted separate suits against the defendants jointly and each was joined by Vincent. By leave of court the defendants filed their third-party complaint in Elaine's case against Jerome and Vincent, claiming contribution as to any judgment which Elaine and Vincent might obtain. The suits were consolidated for trial.

At the intersection U.S. 71 is concrete and Minnesota 7 is bituminous. Both are two-lane and level. There are stop signs on the state highway. Overhanging the intersection is a traffic light flashing red for the east-west traffic on Minnesota 7 and flashing yellow for the north-south traffic on U.S. 71. Truckstop service stations are on the northwest and southwest corners of the intersection but the view of approaching motorists is unobstructed.

Anderson had stopped for coffee at the station on the south-west corner. He pulled out from its premises and onto Minnesota 7. His truck-trailer was more than 50 feet long and, with its load, weighed over 71,000 pounds. His head and clearance lights were on. There were three amber lights at each front top corner and at the center of the bottom of the trailer; all these were lit. Anderson testified that he stopped at the stop sign and then proceeded across the intersection in first gear at between two and three miles per hour; that when he was in the middle of the intersection he saw the Clouse car for the first time; that it was then about 100 feet away; and that "It wasn't really light and it wasn't really dark. It was just kind of in between. You could see a ways". Anderson's co-driver also testified as to their stop at the stop sign. Jerome testified that he was familiar with the intersection and its traffic controls; that he was aware that heavy trucks crossed there; that visibility was good; that there was nothing obstructing his view of Highway 7; that he was driving between 45 and 50 miles per hour; that he first saw the truck when it was proceeding slowly east toward the stop sign; that the truck had its lights on; that he did not see whether the truck stopped at the stop sign; that "I figured the truck was going to stop"; that he started to decelerate some 400 feet before he reached the intersection; and that he was 40 to 50 feet from the semi when he applied his brakes. There was other testimony as to the absence of any sound of air brakes on the semi and to the effect that the skid marks from the Ford extended for about 90 feet; that after the collision the front of the tractor was east of U.S. 71 and on Minnesota 7; that the rear of the trailer was west of the federal highway; and that the Clouse car was going about 65 miles per hour.

The case was submitted to the jury on special verdict by agreement of counsel and as permitted by Rule 49(a), F.R. Civ.P. The questions and the jury's answers were:

1. Was the defendant Anderson negligent? Yes.

2. If the defendant Anderson was negligent, was his negligence a proximate cause of the accident and the injuries and damages complained of? Yes.

3. Was plaintiff Jerome Clouse negligent? No.

4. If plaintiff Jerome Clouse was negligent, was his negligence a proximate cause of the accident and the injuries and damages complained of? No.

5. The damages of Elaine Clouse are Thirty-Two Thousand Three Hundred Dollars ($32,300.00).

6. The damages of Vincent Clouse because of Elaine\'s injuries are Twelve Hundred Dollars ($1200.00).

7. The damages of Jerome Clouse are Three Thousand Dollars ($3,000.00).

8. The damages of Vincent Clouse because of Jerome\'s injuries are Five Hundred Dollars ($500.00).

Judgments were entered accordingly except that the amounts in favor of Vincent were corrected, as the parties agreed, to conform with the evidence.

The defendants urge here that the trial court erred (1) in refusing to submit to the jury the Minnesota reduced speed statute, Minn.Stat.Ann. § 169.14, subd. 3; (2) in refusing to amplify its amber light instruction; and (3) in giving instructions which permitted the jury to determine the effect of their answers upon the ultimate liability of the parties.

Elaine's judgment. We note initially that the judgment in favor of Elaine must stand in any event. Elaine was a passenger. No question of contributory negligence on her part is presented and contributory negligence on Jerome's part, if such were determined to exist, is not imputable to her either at common law or under the Minnesota Safety Responsibility Act, Minn.Stat.Ann. § 170.54.¹ Jacobsen v. Dailey, 228 Minn. 201, 36 N.W.2d 711, 11 A.L.R.2d 1429 (1949); Christensen v. Hennepin Transp. Co., 215 Minn. 394, 10 N.W.2d 406, 413, 418-419, 147 A.L.R. 945 (1943); Olson v. Kennedy Trading Co., 199 Minn. 493, 272 N.W. 381, 383 (1937). There is no contention, therefore, that Elaine is barred from recovery. The only suggestion is that the amount of her judgment is excessive. This court, however, has stated clearly that excessiveness of a verdict is a matter basically for the trial court and that we interfere only in those rare situations where there is plain injustice or a monstrous or shocking result. Solomon Dehydrating Co. v. Guyton, 294 F.2d 439, 446-448 (8 Cir. 1961), cert. denied 368 U.S. 929, 82 S.Ct. 366, 7 L.Ed.2d 192; Bankers Life & Cas. Co. v. Kirtley, 307 F.2d 418, 423 (8 Cir. 1962). Elaine at the time of the accident was a young woman about 20 and received severe and permanent injuries. The amount of the verdict was carefully assessed by the trial court in response to the defense motion for a new trial. We find nothing here which warrants our interference with that verdict on the standards announced in the Solomon case. Neither do we find anything which leads us to conclude that Elaine's verdict is not appropriately severable or is so intertwined with Jerome's case that basic fairness would require that it stand or fall only with his. Rule 59(a), F.R.Civ.P.; Somerville v. Capital Transit Co., 89 U.S.App. D.C. 343, 192 F.2d 413, 415 (1951), cert. denied 342 U.S. 941, 72 S.Ct. 553, 96 L.Ed. 700; 6 Moore, Federal Practice, Par. 59.06, p. 3761 (2d Ed. 1953); 3 Barron & Holtzoff, Federal Practice & Procedure, § 1307, p. 384 (Wright Rev. 1958). See Constitution Publishing Co. v. Dale, 164 F.2d 210, 214 (5 Cir. 1947); Romer v. Baldwin, 317 F.2d 919, 922-923 (3 Cir. 1963). Elaine's judgment therefore is to remain irrespective of the conclusion we reach in the companion cases.

The reduced speed statute. The Minnesota statute, § 169.14, as it read at the time of the accident,² provides a "basic rule" of prudence. It specifies speeds which are lawful "where no special hazard exists" and then calls for "an appropriate reduced speed when approaching and crossing an intersection * * * and when special hazards exist with respect to pedestrians or other traffic or by reason of weather or highway conditions". Closely related is the right-of-way statute, § 169.20, subd. 3, relating to a stop sign at a through highway.³

The defendants asked the trial court to submit to the jury, along with other statutes, the third subdivision of § 169.14 and the portion we have quoted of § 169.20. The latter was submitted but the former was refused. The theory upon which the defense rests its claim of error is that a jury question as to the existence of special hazards, within the reach of § 169.14, subd. 3, was present; that this is so because of the traffic, weather, and highway conditions, and the amber warning light at the intersection; and that if the jury found the statute violated by Jerome, any right of way he may have had was forfeited under § 169.20, subd. 1.

This necessitates a review of the pertinent Minnesota cases.

The bare fact that a driver is on a through highway does not prevent the application to him of the Minnesota reduced speed statute in appropriate circumstances. Norton v. Nelson, 236 Minn. 237, 53 N.W.2d 31, 34, 36 (1952); Kolatz v. Kelly, 244 Minn. 163,...