Markgraf v. McMillan
| Decision Date | 19 June 1936 |
| Docket Number | 30905. |
| Citation | 267 N.W. 515,197 Minn. 571 |
| Parties | MARKGRAF v. McMILLAN. |
| Court | Minnesota Supreme Court |
Appeal from District Court, Mille Lacs County; D. M. Cameron, Judge.
Action by Herman Markgraf, special administrator of the estate of Minnie Markgraf, deceased, against Elvero L. McMillan. From an order denying defendant's motion for judgment notwithstanding the verdict, or a new trial, defendant appeals.
Reversed with directions.
Syllabus by the Court .
Plaintiff's intestate was killed when she was caught upon the door handle of defendant's moving automobile. Upon the facts stated in the opinion there is no evidence to support a jury verdict based upon defendant's negligence.
Murphy, Johanson & Winter, of Wheaton, for appellant.
Lloyd P. Johnson, of Minneapolis, for respondent.
Defendant, after a verdict against him in an action for death by wrongful act arising out of an automobile collision, moved the court for judgment notwithstanding the verdict or a new trial and from an order denying that motion takes this appeal.
The facts construed in the light most favorable to the plaintiff, as they must be, are substantially these: U.S. Highway No. 169 runs north and south between Princeton and Milaca, this state. Minnie Markgraf, the deceased, lived on a farm with her husband, this plaintiff, on the east side of that highway. A driveway connects plaintiff's farm with the highway. April 12, 1935, at about 3:15 p. m., the deceased had walked down the driveway from her home, had crossed the highway, and was proceeding south along the west shoulder of the highway toward a mail box some distance further south. At the same time defendant was driving his Ford sedan south on the highway from Milaca toward Princeton. There was a bus proceeding north along No. 169 and the bus and defendant's car met and passed at a point directly abreast of Mrs. Markgraf. The right front door handle of defendant's car caught and pierced the arm of Mrs. Markgraf between the shoulder and the elbow; she was thrown against the side of the car and then onto the shoulder. She died shortly after.
No one observed the actual collision. Defendant testified that he heard a ‘ thump, a little noise,’ and stopped his car to investigate, and first realized that his car had struck Mrs. Markgraf when he saw her lying on the shoulder close to the pavement.
It is the position of plaintiff that the defendant was guilty of negligence in driving at an unreasonable speed, that he was not keeping a lookout for the deceased, that his attention was attracted and held by the bus, and that defendant got off the pavement, made a sharp turn to the left, and as he did so his car struck the deceased with the bumper and tossed her against the side of the car where she was caught on the door handle, and that defendant should have sounded his horn as a warning of his approach.
Defendant alleges that he was not guilty of negligence and claims that the evidence does not justify the verdict. In order to determine that question a full recital of the evidence is necessary.
One of the principal witnesses for plaintiff was Clarence Young, who owned a farm on the west side of Highway 169. A driveway connects the Young farm with the highway at a point south of the Markgraf driveway. Young observed the deceased as she was walking along the shoulder of the highway and last saw her when she was at a point about 175 feet south of the intersection of his driveway with the highway. He observed the defendant's car when it was about 1,000 feet north of his driveway and the bus when it was about the same distance south. Young stated that the defendant's car was traveling at the rate of 50 or 55 miles per hour and that the bus was going at about the same speed. Mrs. Markgraf's body lay 104 feet from the point where she was last observed by Young and 279 feet south of where the Young driveway intersects the highway. Her body was lying close to the pavement, her feet to the south and her head to the north. A part of the door handle was later found imbedded in her arm. Another part of the handle was found on the shoulder some distance south of where her body lay. The actual point of collision is not definitely shown, but unquestionably it was at some place between the point where she was last seen by Young and the point where her body was found. When last seen by Young,...
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