Lund v. Olson

Decision Date02 January 1931
Docket Number28,167,28,169
Citation234 N.W. 310,182 Minn. 204
CourtMinnesota Supreme Court

Action in the district court for Martin county on behalf of Lenora Lund, a minor, to recover damages for injuries sustained by her in an auto collision. Plaintiff recovered a verdict of $20,000 against defendants Dorothy Fox and Fred Ehlers. From separate orders, Haycraft, J. denying the alternative motions of these defendants for judgment or a new trial, they appealed. Affirmed.


Auto collision at street intersection.

Two automobiles collided at a street intersection. An action was brought by a minor, who was a passenger in one of the cars to recover damages for injuries sustained, among which was a badly fractured skull. The complaint charged that the drivers of both cars were negligent. The separate answer of each defendant denied negligence on the part of the driver of the car in which he was interested and alleged negligence on the part of the driver of the other car. It is held:

Both drivers negligent.

1. The negligence of each driver was clearly established.

Bottle with brain and bone substance properly received.

2. Under the circumstances shown by the record, it was not prejudicial error to receive in evidence a small bottle containing brain substance and pieces of bone removed from the brain.

Also hospital chart.

3. A hospital chart was properly admitted as an exhibit.

Defendant cannot complain of denial of right to cross-examine codefendant.

4. The record does not show that appellant Ehlers had any ground for complaint because of the ruling of the court denying him the right to cross-examine his codefendant while the latter was still on the stand after cross-examination under the statute by respondent's attorney.

$20,000 verdict for injury to nine-year old girl not excessive.

5. Plaintiff's injuries were of a most serious nature. The verdict was large; it had the approval of the trial court. It was not excessive or rendered under the influence of passion and prejudice.

Leo J. Seifert, for appellant Fox.

Merriam & Wright and McCune & McCune, for appellant Ehlers.

Tautges Wilder & McDonald, for respondent.



Defendants Fox and Ehlers each appeal from the denial of an alternative motion for judgment notwithstanding the verdict or for a new trial.

This is a personal injury action originally brought against Emmett Olson, Dorothy Fox (hereinafter referred to as Fox), Einar A. Lund, and Fred Ehlers; separate counsel appeared for Olson and Fox and for Lund and Ehlers. At the opening of the trial defendant Einar A. Lund (father of Lenora Lund) was granted judgment on the pleadings, and the trial proceeded against the other three defendants.

At the close of the evidence a verdict was directed in favor of Emmett Olson on the ground that Fox was not in his employ at the time of the collision and that he was not responsible for her actions. A verdict for $20,000 was returned against Fox and Ehlers; each perfected an appeal.

The accident in which the injuries were sustained occurred April 6, 1929, a clear, sunshiny day, between 10:30 and 11 o'clock a.m. A Buick automobile driven by Fox and owned by Olson collided with an inclosed Ford truck driven by Ehlers and owned by Lund. The collision occurred on the asphalt paved intersection of Park and Webster streets in the city of Fairmont. Both streets were dry. The claim of plaintiff was that the drivers of both automobiles were negligent and that the negligence of each contributed to and caused the collision and the resulting injuries to her. Each appellant claimed to be free from negligence and by answer alleged negligence on the part of the other driver.

Lenora Lund (hereinafter referred to as Lenora) was nine years of age and appeared by her guardian ad litem. Appellant Ehlers was also a minor and appeared by a guardian ad litem.

The assignments of error of each appellant, generally speaking, are that the verdict was not justified by the evidence and was contrary to law; that the verdict was excessive and appeared to have been given under the influence of passion and prejudice; that the court erred in admitting in evidence exhibit F (a bottle containing brain substance and bone). Fox also assigns as error the admission of plaintiff's exhibit G (hospital chart) and Ehlers particularly claims that the evidence did not establish actionable negligence on his part.

1. We first dispose of the question as to the negligence of defendants. On the record in this case it is not necessary to define the legal rights and duties of the two defendants while in the intersection, nor will a recital of the evidence serve any useful purpose. Lack of negligence on the part of Fox could not be seriously asserted. The testimony of Ehlers himself with that of other witnesses made his negligence a clear question of fact for the jury. Its conclusion that both defendants were negligent had ample support and must stand.

2. Lenora and two younger girls were riding in the inclosed rear part of the Ford truck. Lenora was thrown from that inclosure to a point quite a distance from where the collision occurred, landing on her head on the pavement, sidewalk, or curb. Unconscious, she was taken to a hospital, remaining unconscious or semi-conscious for two weeks. She sustained serious injuries. One of them was the crushing of her skull on the right upper forward portion thereof, from which a portion of the brain exuded. There was an opening in the skull approximately two and one-half inches by two inches in size.

From the opening in her head there escaped or was removed about four ounces of brain matter; eight pieces of splintered bone were taken from the brain. A portion of such lost brain matter and all those pieces of bone were placed in a small bottle by Dr. Blanchard, one of the three operating surgeons. When on the stand as a witness for plaintiff he was interrogated as to the number of bone pieces removed. He stated first that "there were probably four or five. I do not know." He was asked if he still had the pieces of bone, and he produced a small bottle containing liquid, brain substance, and pieces of bone. It was examined by counsel for both sides in the presence of the court, the jury, and the occupants of the court room.

Dr. Blanchard examined the bottle and stated that there were at least five pieces of bone therein. He later found seven and finally located eight. He testified that the bone and brain substances in the bottle were removed by him from the brain; that some of the lost brain substance had escaped, being crushed into liquid; that two "solid" pieces therein had shrunk and were only about one-half the size as when fresh. He gave further details relative to the operation and her condition. No objections were made while the foregoing testimony was given and the bottle exhibited.

The exhibit was then marked for identification and offered in evidence, at which time both appellants objected to its admission on the ground that no foundation had been laid and that was incompetent, irrelevant and immaterial. It was not objected to as prejudicial. The objection was overruled and the exhibit received.

It is claimed by plaintiff that the offering of the exhibit was for the purpose of establishing the number of bone pieces removed from the brain, the witness not being able to testify definitely from memory in that regard. The pieces of bone in the bottle were not all of the skull that was fractured by the impact. The bottle was a small one, and the exhibit was not of the gruesome nature that counsel for appellants suggest. Considering what had transpired, the exhibition of the bottle, the purpose for which it was offered, and the testimony elicited without objection, we are of the opinion that the trial court was not in error in admitting it in evidence.

A case cited by appellants (Evans v. C.M. & St. P. Ry. Co. 133 Minn. 293, 295, 158 N.W. 335, 336) wherein it was held error to admit in evidence a preserved, amputated hand when it was "offered in evidence for the purpose of showing damages and pain and suffering," is not here in point. The fact that the hand had been removed was evidenced by the stump of plaintiff's arm, which plainly proved the loss of the hand; the admitted exhibit was not necessary in establishing that fact, nor was it necessary in proving the amount of plaintiff's pain and suffering. That case differs radically from the one at bar. Here an examination of the scar covering the hole in the head would not disclose the number of bone pieces removed from the brain. In this case the answers interposed by the defendants put in issue the extent of the injuries; the burden of proving the same was on plaintiff.

Other cases cited by appellants are readily distinguishable. Cases holding it error to admit in evidence exhibits introduced to excite a feeling of pity and commiseration on the part of the jury and not to enlighten or aid it in settling a disputed question of fact are not helpful.

The trial court in its memorandum reached the conclusion that it was not prejudicial error to...

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