Martin v. Bussert

• Decision Date: 10 December 1971
• Docket Number: 42805,Nos. 42804,s. 42804
• Citation: 193 N.W.2d 134,292 Minn. 29
• Parties: Donald C. MARTIN and Mary Ella Martin, Appellants, v. Paul BUSSERT, et al., Respondents, and Rita BUSSERT, et al., Respondents, v. Donald C. MARTIN and Mary Ella Martin, Appellants.
• Court: Minnesota Supreme Court

Page 134

193 N.W.2d 134

292 Minn. 29

Donald C. MARTIN and Mary Ella Martin, Appellants, v. Paul BUSSERT, et al., Respondents, and Rita BUSSERT, et al., Respondents, v. Donald C. MARTIN and Mary Ella Martin, Appellants.

Nos. 42804, 42805.

Supreme Court of Minnesota.

Dec. 10, 1971.

Syllabus by the Court

1. If the evidence justifies a charge that a party was negligent as a matter of law, the failure of the trial court to so instruct the jury is without prejudice when the jury specifically finds that the party was negligent.

2. Upon the evidence adduced, the court properly included in its instructions the provisions of Minn.St. 169.19 relating to left turns.

3. A jury's apportionment of negligence between tortfeasors will not be modified unless there is no evidence reasonably Affirmed.

tending to sustain the apportionment or the apportionment is manifestly and palpably against the weight of the evidence.

Karl J. Herman, Bloomington, Johnson & Sands and Maurice C. Lizee, Minneapolis, for appellants.

Dressel & Greising, Waterville, Meagher, Geer, Markham & Anderson, O. C. Adamson, II, James W. Torke and Roderick Blanchard, Minneapolis, for respondents.

Heard before MURPHY, PETERSON, KELLY, and HACHEY, JJ.

OPINION

RONALD E. HACHEY, Justice. ^*

Appeals from judgments and from orders of the trial court denying motions for judgment notwithstanding the verdict or, in the alternative, for a new trial in consolidated actions arising as a result of an accident that occurred on June 15, 1968, at the intersection of County Roads Nos. 37 and 69 in Rice County. An action was brought by Donald C. Martin, a passenger and the owner of one automobile, individually and as father and natural guardian of Mary Ella Martin, the driver of the automobile, against Rita Bussert, the driver of the other automobile, and her husband, Paul, its owner. A separate action was commenced by Paul and Rita Bussert against the Martins, and the cases were consolidated for trial. The jury, by special verdict, found Mary Ella Martin to be accountable for 80 percent of the causal negligence and Rita Bussert for 20 percent. The Martins, as both party plaintiffs and party defendants, interposed blended motions in each action for judgment notwithstanding the verdict or for a new trial. The motions were denied and they appealed.

At about 5 p.m. June 15, 1968, on a dry and sunny afternoon, Mary Ella Martin was driving her father's 1968 Buick in a southerly direction on Rice County Road No. 69. A girl friend and her father rode with her as passengers. At approximately the same time, Rita Bussert was driving her husband's 1965 Studebaker in a westerly direction on County Road No. 37. Five of her children were with her as passengers. County Roads Nos. 69 and 37 intersect in a 'T' so that a car traveling south on No. 69 must turn either right or left upon reaching No. 37. Both roadways were blacktopped, were of approximately the same width, and were regulated by a nonposted speed limit of 65 m.p.h. Vision for both drivers at the uncontrolled intersection was unobstructed for a fair distance on each roadway.

At the trial, Rita Bussert testified that she did not see the Martin automobile at all prior to the impact. Mary Martin testified that she came over the creat of a hill on County Road No. 69 about a quarter of a mile north of the intersection at a speed of about 35 m.p.h. and slowed to a speed of about 10 m.p.h. Both drivers were familiar with the intersection. Mary first observed the Bussert car when it was moving through a curve about 400 feet east of the intersection. At that time Mary was about two car lengths from the intersection. She saw nothing unusual about the manner in which the Bussert automobile was proceeding and assumed it would slow down to permit the Martin vehicle to pass through the intersection. When being cross-examined, Mary testified that she had engaged her left-turn signal, but she admitted that she did not know precisely when she had done so, stating: 'I didn't make a conscious note when I turned my signal on, I just know that before you come up to an intersection you turn your signal on.' When Mary had entered the intersection, she realized that the Bussert automobile was not going to stop for her, and she determined that it was best to accelerate her vehicle in an attempt to cross No. 37 and to drive into the ditch on the south side. Despite this testimony, the Martin vehicle left 15-foot skid marks prior to the point of impact. A deputy sheriff testified that he believed Mary was not wearing shoes. Donald Martin, Mary's father, noticed the Bussert vehicle anywhere from 4 to 10 seconds before the impact and estimated if was four car lengths away. He recalled that Mary slowed to 20 m.p.h., intending to turn left. Just as the nose of his Buick entered the intersection, he recalls having shouted: '* * * (W)ho is going to do something.'

Rita Bussert testified that, as she rounded the curve on No. 37 east of the intersection, she was traveling at about 50 m.p.h., slowing to 40 m.p.h. as she approached the intersection. She looked to her right for southbound traffic on No. 69 but did not see the approaching Martin automobile.

Damage to the vehicles indicated that the Bussert vehicle struck the Martin vehicle on its left side towards the front.

1. Appellants contend that the trial court erred in failing to hold that Rita Bussert was negligent as a matter of law. The court refused a requested instruction to that effect and submitted that issue to the jury. Upon a review of the evidence, and more particularly in view of Rita Bussert's failure to see the Martin vehicle, we are convinced that Rita was negligent as a matter of law and that the trial court should have so instructed the jury. See, Daugharty v. Anderson, 275 Minn. 371, 147 N.W.2d 378 (1966); Bellman v. Posnick, 233 Minn. 268, 46 N.W.2d 475 (1951); Moore v. Kujath, 225 Minn. 107, 29 N.W.2d 883 (1947). The jury, however, did find Rita negligent, and thus we now face the issue of whether the failure to give the requested instruction was reversible error. Although this issue has not been presented to us on frequent occasion, in Mutual Service Cas. Ins. Co. v. Overholser, 239 Minn. 243, 245, 58 N.W.2d 268, 269 (1953), we held:

'* * * (E)ven if the record justified a charge that as a matter of law (appellant) was negligent, the failure of the court to so instruct the jury was without prejudice to the (respondents) because a finding that (appellant) was negligent is implicit in the verdicts rendered.'

In the instant case the answers in the special verdict clearly show that both drivers were found negligent. Under the circumstances, the failure to give the requested instruction did not reach that degree of prejudice which would require a finding of reversible error. We hold, therefore, that refusal of the trial court to instruct as requested was harmless error.

2. The trial court included Minn.St. 169.19, relating to left turns, in its instructions. Appellants allege error in giving the instruction by reason of the facts that (1) Mary Martin did have her turn signal on, (2) any failure on her part to signal for a left turn was not a causal factor, and (3) Rita Bussert did not see the Martin vehicle at all. Appellants' position is weakened by the ambiguity of Mary Martin's testimony set out above concerning her use of the left-turn signal. Based upon that testimony alone, it was not error to give the instruction regarding the statutory requirements for executing a left turn.

Appellants argue that, since Rita did not see the Martin vehicle at all, the giving of the left-turn instruction was superfluous and tended to focus the jury's attention upon Mary Martin's conduct. Respondents argue that, if Mary Martin had actually engaged her left-turn signal, Rita Bussert's attention might have been called to it. The evidence, however, is lacking as to whether a left-turn signal on a 1968 Buick could be seen by a driver of a vehicle approaching an intersection at a right angle. Taking the evidence as a whole, we conclude that it was proper for the trial court to give the instruction regarding left-turn signal requirements.

3. We are asked to order a new trial to correct what appellants urge to be an inequitable and unfounded apportionment of negligence between the two drivers. Inasmuch as the State of Minnesota and Wisconsin have similar statutory provisions regarding comparative negligence, an examination of the case law of our neighboring state on the issue of apportionment of negligence would be helpful.

In Crawley v. Hill, 253 Wis. 294, 34 N.W.2d 123 (1948), a pedestrian, while crossing a highway, ran in front of a car which struck him, resulting in his death. Under Wisconsin law, the driver of the vehicle had the right-of-way. The jury apportioned 80 percent negligence to the driver of the car and 20 percent to the pedestrian. On appeal, the judgment was reversed with a finding and conclusion that the negligence of the pedestrian was at least as great as the driver's. Apparently the holding is based upon the premise that a jury's finding will not be interfered with unless it appears to be absolutely necessary in order that justice be done.

A similar result was reached in Schwarz v. Winter, 272 Wis. 303, 75 N.W.2d 447 (1956). A driver of a motor vehicle making a left turn failed to yield the right-of-way to an oncoming vehicle. The court's finding of 40 percent negligence on the part of the driver making the left turn and 60 percent negligence on the part of the oncoming driver was corrected by a finding and conclusion that the negligence of the driver...