McMahon v. Flynn
| Decision Date | 19 January 1923 |
| Docket Number | 23,151 |
| Citation | 191 N.W. 902,154 Minn. 326 |
| Parties | NORA McMAHON, AS ADMINISTRATRIX, ETC. v. PHILIP H. FLYNN AND ANOTHER |
| Court | Minnesota Supreme Court |
Action in the district court for Ramsey county by the administratrix of the estate of Leo A. McMahon, deceased, to recover $7,500 for the death of her intestate. The case was tried before Haupt, J., who at the close of the testimony denied defendants' motions for directed verdicts, and a jury which returned a verdict for $5,500. From an order denying their motions for judgment notwithstanding the verdict or for a new trial, defendants appealed. Affirmed.
Liability of owner of automobile for his wife's negligent driving -- pedestrians not outlaws at street crossings.
In this action damages for the death of plaintiff's intestate through the negligent operation by the wife of the husband's automobile, were given by a jury. It is held:
(1) The proof made the question for the jury whether the alleged negligence of Mrs. Flynn in driving the automobile was the proximate cause of the death of plaintiff's intestate.
(2) The evidence justifies the submission of Mr. Flynn's responsibility for the negligence of his wife in the driving of the automobile on the occasion in question.
(3) The contributory negligence of plaintiff's intestate was for the jury.
(4) The evidence justified the submission of negligence in respect to statutory signals, speed, control and place on the street of the automobile.
(5) Auto drivers must use due care in approaching cross-walks when pedestrians are crossing thereon. Their rights to cross are not subordinate to those of auto drivers.
(6) The instruction as to the presumption of due care of one killed through the negligence of another, and as to the testimony of eyewitnesses to overcome the presumption, was substantially correct.
(7) The damages though liberal cannot be held so large that this court should attempt reduction.
Douglas Kennedy & Kennedy, for appellant.
Sexton, Mordaunt & Kennedy, for respondent.
From an order denying defendants' motion in the alternative for judgment or a new trial, they appeal.
The recovery was for damages on account of the death of Leo A. McMahon caused by defendants' negligent operation of an automobile. The occurrence may be briefly stated thus: Smith avenue, running north and south, crosses Sixth street in the city of St. Paul about where the latter street, running westerly, approaches a steep upgrade. Sixth street also angles off towards the northwest, beginning where the east line of Smith avenue intersects. The defendants are husband and wife, the husband being the owner of a Buick touring car. At about 10:30 p.m. on May 1, 1920, the wife, driving this car westerly on Sixth street, was approaching the east crossing of Smith avenue as Leo A. McMahon with a companion were on that crossing going southerly towards the south sidewalk on Sixth street. Estimates of the speed of the car differ, but range from 8 to 20 miles per hour. The evidence as to the movements of the deceased and the automobile a few seconds before the collision varies. The different witnesses did not notice what was taking place at the same moment of time nor from the same viewpoint. There is testimony tending to show that the auto was on the left of the center of Sixth street immediately before McMahon was hit. Both the front and rear right wheel ran across his body, which lay to the left of the center of Sixth street. This location of the body, with the fact that it was upgrade, that the car was not stopped until it passed the body 3 to 6 feet, and the testimony of Mrs. Flynn that deceased started to run away from the car when she was about 15 feet from him, and that she nevertheless overtook and ran him down, surely made a question for the jury as to negligent speed, control and position of the auto. Roberts v. Ring, 143 Minn. 151, 173 N.W. 437, indicates that a much slower speed and less opportunity to observe the person struck than are disclosed in this record require the submission of the negligence of the driver to the jury. It was properly submitted in this case.
It is also claimed that Mr. Flynn was entitled to a directed verdict. We think not. The auto was provided by him for business and pleasure. True, Mrs. Flynn learned to drive a car without his knowledge and contrary to his wishes. But he admits that, after she had informed him that she could drive, he consented to her using the car, but forbade her to take the children along, and told her not to drive in the congested district. On the occasion in question, the car was used to take a girl who had been in the employ of defendants for some time to the depot. Mrs. Flynn's brother, an expert driver, drove the car to the depot, and back to a filling station on Sixth street 2 or 3 blocks east of the place of collision. Mrs. Flynn then took charge of the car.
Mr. Flynn testified: "I had no objection -- really I had an objection, but I did give my consent to let her drive the car in the places I referred to, in the residential district." Ques. "That is, during your absence she could? Ans. "Any time." Ques. "The car was in her possession during your absence to use for those purposes?" Ans. "She might use it in that way if she wanted to."
Mr. Flynn was away from home a great part of the time, and was in Texas on the evening here in question. Mrs. Flynn testified she had been driving the car for about a year with her husband's knowledge. It appears that he objected principally to her taking the children along when she drove because they were small. She was asked on cross-examination: Ques. "In other words, he did give you permission to drive the car then?" Ans. What is said in Richardson v. Weiss, 152 Minn. 391, 394, 188 N.W. 1008, as to the jury's province to determine the effect of testimony, even though there is no conflict, where it appears that it comes from witnesses whose interests are solely with the litigant calling them, applies here. Johnson v. Evans, 141 Minn. 356, 170 N.W. 220, 2 L.R.A. 891, and the many subsequent cases involving the responsibility of the head of the family for negligent operation by any member of the family of a car owned and kept for the pleasure or convenience of the family, required the submission of Mr. Flynn's liability to the jury. And the evidence sustains the verdict against him.
The claim is made that the deceased was guilty of contributory negligence. It is true the person walking with deceased got across safely, and there is some testimony that deceased turned back after having passed the course of the automobile,...
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