Mueller v. Dewey

• Court: Supreme Court of Minnesota (US)
• Citation: 198 N.W. 428,159 Minn. 173
• Docket Number: No. 23899.,23899.
• Parties: MUELLER v. DEWEY.
• Decision Date: 17 April 1924

159 Minn. 173

198 N.W. 428

MUELLER

v.DEWEY.

No. 23899.

Supreme Court of Minnesota.

April 17, 1924.

Appeal from District Court, Beltrami County; C. W. Stanton, Judge.

Action by Adolph Mueller against Frank Dewey, also known as Frank Doyea. Verdict for plaintiff, and, from an order denying motion for new trial, defendant appeals. Affirmed.

Syllabus by the Court

The evidence warranted a finding that, in overtaking and passing plaintiff's car, defendant cut in ahead of it and crowded plaintiff off the roadway.

The court submitted the question of willful negligence to the jury, defining it as a reckless disregard of the safety of another by failing, after discovery of the peril, to exercise ordinary care to prevent the impending injury. The instruction was not erroneous, although, properly speaking, defendant's act was willful and wanton rather than negligent.

One guilty of willful negligence cannot avail himself of the defense of contributory negligence.

The evidence warranted a finding that defendant was guilty of negligence in the ordinary sense of that term. It did not warrant a finding of contributory negligence.

The evidence warranted a finding that defendant passed plaintiff at a rate of speed greater than was reasonable and proper. The trial court did not err in instructing the jury that a rate of speed exceeding the limit fixed by statute (section 1, c. 475, Laws 1917 [Gen. St. Supp. 1917, § 2635]) raised a presumption that defendant drove his car in an unlawful manner.

Whether the trial court's construction of the road rules prescribed by section 2634, G. S. 1913, was correct or not, defendant is in no position to complain, in view of his testimony that, when he signaled that he wished to pass, plaintiff turned to the right and yielded the road to him. T. C. Bailey, of Bemidji, and W. E. Rowe, of Crookston, for appellant.

G. M. Torrance, of Bemidji, and H. L. & J. W. Schmitt and H. W. Volk, all of Mankato, for respondent.

LEES, C.

Action for damages for injuries sustained by plaintiff in an automobile accident. Plaintiff had a verdict, and defendant has appealed from an order denying his motion for a new trial.

The complaint alleged that on August 23, 1922, while plaintiff was traveling on a public highway near the city of Crookston, the defendant overtook him and willfully drove his car against the plaintiff's, causing it to run off the road and into a ditch, and seriously injuring the plaintiff. The answer alleged that plaintiff's injuries were due to his own negligence, that when defendant was passing him plaintiff continued to drive at a high rate of speed, did not yield the right of way, although proper signals had been given, and crowded his car against defendant's.

The court instructed the jury that there was sufficient evidence to make the question of willful negligence one for their consideration within the following definition:

‘Willful negligence is a reckless disregard of the safety of the person or property of another by failing, after discovery of the peril, to exercise ordinary care to prevent the impending injury.’

The evidence showed that when plaintiff was overtaken he was driving at a speed of about 20 miles an hour on a graveled road 24 feet wide, with ditches on either side about 3 feet deep and 8 feet wide; that defendant sounded his horn three times; that plaintiff's wife called his attention to the fact that defendant wished to pass, whereupon plaintiff turned his car to the right and drove within 2 or 3 feet of the north edge of the road. On the one hand there was evidence that, in passing plaintiff, the defendant swerved his car to the north and cut in ahead of and so close to plaintiff's car as to strike it, causing it to leave the road and plunge into the ditch, and that defendant was driving at a speed of 35 miles an hour when he passed; and, on the other hand, that plaintiff was not near the north side of the road when the accident happened, that when defendant passed, the two cars were 3 or 4 feet apart, defendant's car being within a foot or two of the south side of the road, and that he was not driving faster than 27 miles an hour.

The accident happened a short distance east of Crookston at about 7 p. m., when the sun was shining and the road was dry. Defendant had been at Bemidji and was on his way to Crookston. He had a quart bottle of moonshine whisky or a mixture of grape juice and moonshine, drank a portion of it prior to the accident, but denied that he was intoxicated.

Shortly after he reached Crookston defendant's car was examined. The hub cap on the right rear wheel was dented. Later, the hub cap on the left front wheel of plaintiff's car was found to be similarly dented. No other marks on defendant's car indicated that it had struck anything.

A man named Rae testified that he was in the rear seat of defendant's car; that when defendant passed plaintiff he heard a brushing or scraping sound, looked back, saw plaintiff's car in the ditch and told defendant, but he did not stop, saying he always let a man go by if he wanted to pass. On being pressed to tell what else was said, Rae added that defendant exclaimed: ‘Damn it all, they never seem to want to give me half the road when I want to go fast.’

At the place of the accident, the traveled track which plaintiff was following ran nearer the south than the north side of the road. Defendant did not have room enough to pass to the left if plaintiff's car held its position in the road.

The foregoing outline of the evidence is sufficient to show that the question of willful negligence was in the case. The court's definition was...