Meulners v. Hawkes

• Decision Date: 29 March 1974
• Docket Number: No. 44210,44210
• Citation: 299 Minn. 76,216 N.W.2d 633
• Parties: Sharon L. MEULNERS, a Minor, by Clyde Meulners, her Father and Natural Guardian, and Clyde Meulners, Individually, Respondents, v. Daniel B. HAWKES, Appellant.
• Court: Minnesota Supreme Court

Page 633

216 N.W.2d 633

299 Minn. 76

Sharon L. MEULNERS, a Minor, by Clyde Meulners, her Father and Natural Guardian, and Clyde Meulners, Individually, Respondents, v. Daniel B. HAWKES, Appellant.

No. 44210.

Supreme Court of Minnesota.

March 29, 1974.

Syllabus by the Court

1. The unequivocal evidence in this matter sustains the trial court in removing the issue of assumption of risk after it had been submitted to the jury and they had found that plaintiff had assumed the risk.

2. Assumption of risk prior to Springrose v. Willmore, 292 Minn. 23, 192 N.W.2d 826 (1971), is distinguished from contributory negligence by the voluntary choice of plaintiff to encounter a known and appreciated danger. Contributory negligence rests upon plaintiff's failure to use due care for his own protection.

Hoppe & Healy and Robert J. Healy, Minneapolis, for appellant.

Barnett, Ratelle, Hennessy, Vander Vort & Stasel and Robert W. Barnett, Minneapolis, for respondents.

Heard before KNUTSON, C.J., and OTIS, TODD, and SCOTT, JJ., and considered and decided by the court.

TODD, Justice.

This action was brought on behalf of Sharon L. Meulners, a minor, (hereafter plaintiff) for injuries received when struck by a car driven by defendant, Daniel B. Hawkes, as she was standing alongside a parked vehicle on a public street. Her father, Clyde Meulners, sought consequential damages. The jury returned a verdict apportioning negligence of the parties and in addition found that plaintiff has assumed the risk. The trial court in response to plaintiff's posttrial motion withdrew the issue of assumption of risk from the case and entered judgment for plaintiff. Defendant appealed.

On the evening of November 7, 1970, plaintiff and four friends, James Cross, Mike Roberts, George Caviness, and Laura Noreen, arrived at a party being given by Mark Anderson at his parents' home at 3256 Xenia Avenue in the city of Crystal. They arrived at approximately 10:30 p.m. Mike Roberts parked his car across the street and slightly to the north of the Anderson home. One of the group observed a friend in a car on the same side of the street ahead of the Roberts' car and the group of five proceeded to this car. James Cross was leaning on the front door of the car. Laura Noreen was standing next to him approximately 3 or 4 feet away from the car. Mike Roberts was standing alongside the rear of the car. Plaintiff was standing next to him and leaning against the taillight of the car. George Caviness was opposite her behind the car with his arms on her shoulders.

There were several other vehicles parked on both sides of the street. Xenia Avenue is 28.5 feet in width between the curblines. The evidence indicated that it would have been difficult for two cars to proceed between the parked vehicles.

Defendant had arrived at the Anderson home at approximately 7 p.m. He admitted consuming two cans of beer while at the party. He had left for a period of about 45 minutes and had returned. At approximately 11 p.m., he and a friend decided to leave the party. He left the Anderson home and walked across the street to where his automobile was parked. He was driving a 1969 Javelin sports car with a four-speed transmission that had been geared for fast acceleration. He proceeded southerly on Xenia Avenue to a nearby house, where he turned into the driveway. He backed out and proceeded northbound on Xenia Avenue, having to stop shortly for a group of young people standing in the street. He then accelerated the car to 35 to 40 miles per hour in a short space of time. Witnesses described the car as fishtailing down the road, swerving from the east to the west side of the road, narrowly missing another group of young people standing alongside the car parked immediately in front of the car by which plaintiff was standing. As he reached the car where plaintiff was standing, James Cross pulled Laura Noreen out of the way. The witnesses then heard a thump. George Caviness stated that he did not see the car at the point of impact but that he felt plaintiff being pulled out of his arms. He saw her fly through the air and strike the front end of a car parked 15 to 20 feet from the rear of the car where he was standing. Plaintiff fell to the pavement unconscious. Plaintiff has no recollection of the events surrounding the accident.

The amount of damages awarded plaintiff and the allocation of contributory negligence to plaintiff are not before the court on this appeal. Defendant only challenges the order removing the issue of assumption of risk from the case and entering judgment for plaintiff.

1. Defendant claims that plaintiff must have assumed the risk because she was standing in the street and must have heard the noise made by the car as it was accelerated down the street. ¹ A careful review of the record indicates that plaintiff was leaning against the left taillight of the car during the time immediately preceding the accident and at the time of the impact. Of the other young people standing near the car, two indicated that their attention was first attracted to the car by its headlights and only one testified that his attention was attracted to the car by the headlights and the noise of the engine.

The trial court in its memorandum accompanying the order removing the issue of assumption of risk from the case stated that it was originally troubled in submitting this issue to the jury. After a review of the proceedings and the briefs of counsel, the trial court determined that assumption of risk was not an...