Northern Liquid Gas Co. v. Hildreth

• Decision Date: 23 February 1950
• Docket Number: 14039.,No. 14035,14035
• Citation: 180 F.2d 330
• Parties: NORTHERN LIQUID GAS CO. et al. v. HILDRETH (two cases.)
• Court: U.S. Court of Appeals — Eighth Circuit

180 F.2d 330 (1950)

NORTHERN LIQUID GAS CO. et al. v. HILDRETH (two cases.)

Nos. 14035, 14039.

United States Court of Appeals Eighth Circuit

February 23, 1950.

John S. Morrison, Minneapolis, Minn. (G. P. Mahoney, Minneapolis, Minn. on the brief), for appellants.

William J. Nierengarten, Austin, Minn. (Luther M. Bang, Austin, Minn. on the brief), for appellees.

Before SANBORN, THOMAS, and JOHNSEN, Circuit Judges.

SANBORN, Circuit Judge.

Floyd Hildreth, on September 13, 1947, at about 12:30 P.M., was driving his automobile westerly on United States Highway No. 61, near the village of Tofte, Minnesota, on his way to his home in Austin, Minnesota, when his automobile collided with the rear left fender of a parked truck, headed in the same direction, a large part of which was on the pavement. He and his wife, Loretta I. Hildreth, who was riding with him, were hurt and the car was damaged. The truck was a large tank-type truck used for the delivery of propane gas, and was owned by the Northern Liquid Gas Co., of Superior, Wisconsin. The driver of the truck was Allan B. Cole, who, on his way to Superior, Wisconsin, had parked the truck temporarily on the north side of the pavement, in order to go to the assistance of some women whose automobile, while traveling east, had had a tire blow out and who were unable to jack up the car in order to change the tire.

Attributing the accident and its consequences to the negligence of the driver of the truck in parking upon a paved portion of the highway, each of the Hildreths, citizens of Minnesota, brought an action for damages against the owner and the driver of the truck, who are citizens of Wisconsin. The defendants denied liability and alleged that the plaintiffs were guilty of contributory negligence. The cases were tried together to a jury. The defendants moved for directed verdicts. Their motions were denied. The jury returned verdicts for the plaintiffs, upon which judgments were entered. The court denied the defendants' motions for judgments notwithstanding the verdicts. These appeals followed.

The defendants contend that, under the evidence and the applicable substantive law, which is that of Minnesota, the issues whether the parking of the truck on the pavement was the proximate cause of the accident and whether Floyd Hildreth was guilty of contributory negligence were not issues of fact for the jury, that the defendants' nonliability was conclusively established, and that the court should have directed verdicts in their favor. The defendants concede that the truck was parked in violation of § 169.32, Minn. Stat. Ann., and that this was prima facie evidence of negligence on their part under § 169.96, Minn. Stat. Ann.

There is no substantial dispute as to the facts. The day was clear; the road — which was straight and substantially level — was surfaced with tarvia to a width of 24 feet 2 inches and had a 6-foot shoulder on the north side and a 3½-foot shoulder on the south side. It was a two-lane highway, with a painted line approximately down the middle. The south lane, as marked, was 12 feet 10 inches wide, and the north lane was 11 feet 4 inches in width. The parked truck, the right wheels of which were on the north shoulder, apparently extended about 6 feet onto the pavement, leaving approximately 5 feet 4 inches of the north lane and all of the south lane, or about 18 feet of the pavement, unobstructed. A side road came into the highway from the northeast about 100 feet behind the truck. The car with the blown-out tire was about 200 feet northeast of the truck, on the south side of the highway, partly on the pavement and partly on the shoulder.

Floyd Hildreth, when about half a mile from the parked truck, saw it and saw the disabled car on the south side of the highway with people standing around it. He then thought the truck was moving. He was driving 40 to 50 miles an hour and was following another car at a distance of about 300 feet. As he approached the truck, the car ahead of him, which obstructed his view of the truck, turned to the left to pass the truck, and it was his intention to follow that car. He was then about 500 feet from the truck and realized that it was standing. He and the driver of the car ahead of him had slowed down to 35 or 40 miles an hour as they neared the truck, preparatory to passing it. When Hildreth was about 250 feet behind the truck, an automobile suddenly and unexpectedly came out of the side road about 150 feet ahead of him and moved across the highway to his left. He swung to his right to avoid that car, but did not apply his brakes until he was 50 feet from the rear of the truck, when he did apply them and turned his car to the left, but nevertheless struck the left rear fender of the truck with the right front part of his car. He testified that his car would not have struck the truck except for the car which unexpectedly came onto the highway from the side road, which he did not know existed and of which he had no warning.

The defendants argue, in substance, that the evidence conclusively shows that Floyd Hildreth knew of the presence of the truck long before he reached it; that he saw the car which came upon the highway from the side road in ample time to stop or slow down and thus avoid colliding with the truck; and that his failure so to do was negligence as a matter of law and the sole proximate, or at least a contributing, cause of the accident. The defendants rely mainly upon the cases of Geisen v. Luce, 185 Minn. 479, 242 N.W. 8; Medved v. Doolittle, 220 Minn. 352, 19 N.W.2d 788; and Barrett v. Nash Finch Co., 228 Minn. 156, 36 N.W.2d 526.

The plaintiffs, on the other hand, contend, in effect, that the driver of the truck, in parking, as he did, 100 feet beyond the side road, with which he was familiar but of which Floyd Hildreth was unaware, created a hazardous condition; that the sudden appearance of a car from this side road in front of Hildreth as he was about to pass the truck was a distracting circumstance and created an emergency; and that whether, under the circumstances, Hildreth was negligent in failing to avoid a collision with the truck, whether if so his negligence caused or contributed to the accident, and whether the negligence of the driver of the truck in parking it as and where he did was the cause of the accident, were questions for the jury and not for the court.

There have been many cases in Minnesota growing out of the alleged negligent parking of cars upon the highways of the State. Some of them are collected in the margin.¹ In the majority of such cases, the Supreme Court of Minnesota has held that the issues of negligence, proximate cause and contributory negligence not being free from doubt were for the jury and not the court. In some cases, including those upon which the defendants rely, it was held, in substance, that the plaintiff was so plainly guilty of negligence in failing to avoid an accident that the standing vehicle had no causal relation to the accident and was to be regarded merely as a part of the environment in which the accident (otherwise caused) occurred.

The case of Geisen v. Luce, supra, 185 Minn. 479, 242 N.W. 8, 11, grew out of an automobile accident which happened at about four o'clock in the afternoon of a March day in 1930. Luce, while driving at a speed of from 50 to 60 miles an hour, ran off the highway when attempting to pass a disabled Cadillac car, belonging to Ferris, which was standing on the right-hand side of the pavement headed in the direction Luce was traveling. One of the passengers of the Luce car was injured, and she sued both Luce and Ferris and recovered a judgment against both. Luce testified that he was following another car, which obstructed his view; that he swung to his left to pass this car as it swung to the left to pass the Cadillac; that, as he reached the Cadillac, he was confronted by a car coming toward him, and, in order to avoid a head-on collision, drove onto the left shoulder of the road and his car went into the ditch. The Supreme Court of Minnesota held that the evidence sustained the verdict as against Luce, but not as against Ferris. It ruled that Ferris was not negligent in leaving his disabled car on the pavement, but that, even if he had been negligent in that regard, the negligence of Luce was the proximate cause of the accident; that "there was no causal connection between the `standing' of the Ferris car and the accident;" and that "This accident resulted from Luce's excessive speed, his indiscretion in not having his car under control in anticipation of south-bound traffic, and his failure to appreciate the impending danger."

Medved v. Doolittle, supra, 220 Minn. 352, 19 N.W.2d 788, arose out of a collision which occurred in the daytime on a three-lane highway 27 feet wide, the right lane of which was blocked by a disabled truck. The driver of the car which collided with the rear of the truck saw it when more than a quarter of a mile away. His wife was with him. He could have avoided a collision by stopping or by turning into another lane of the highway. When he was 150 to 175 feet from the truck, he took his eyes off the road, looked sidewise at his wife, and the next thing he knew his car had collided with the truck. His wife was killed. The representative of her estate sued the owner of the truck and a mechanic, who was engaged in repairing it, to recover for her alleged wrongful death. The jury returned a verdict for the plaintiff. The Supreme Court of Minnesota reversed, although it held that, since the truck had been left standing on the highway in violation of a Minnesota statute, the defendants were prima facie guilty of negligence. The court said page 358 of 220 Minn., page 791 of 19 N.W.2d: "We think that the husband's conduct constituted an intervening, efficient, and responsible cause, breaking the chain of causation between defendants' original negligence and the collision. It operated as an...