Odessa Duff v. Bemidji Motor Service

• Decision Date: 20 June 1941
• Docket Number: 32,699
• Citation: Odessa Duff v. Bemidji Motor Service, 299 N.W. 196, 210 Minn. 456 (Minn. 1941)
• Parties: Odessa Duff v. Bemidji Motor Service Company And Another
• Court: Minnesota Supreme Court

299 N.W. 196

210 Minn. 456

Odessa Duff v. Bemidji Motor Service Company And Another

No. 32,699

Supreme Court of Minnesota

June 20, 1941

Action for wrongful death in the district court for Beltrami county by the representative of the estate of Harry Duff against Bemidji Motor Service Company and Leonard Temanson. The case was tried before Graham M. Torrance, Judge, and a jury. After verdict of $9,000 for plaintiff, defendant company appealed from an order denying its alternative motion for judgment or a new trial. Affirmed.

Dell & Resengren, for appellant.

Smith & Nolan, for respondent.

The opinion of the court was delivered by: Stone

Automobile -- injury to volunteer assisting at accident -- proximate cause of injury.

1. After dark two trucks, one disabled and the other a service car called to its assistance, blocked one lane of a trunk highway. In the hazard thus created, the decedent, who had come to the assistance of the truck drivers, was killed while standing in front of the service truck in a collision between it and another car. Failure of driver of the service truck to set out flares which he had available and the use of which under such circumstances is required by statute held to show both negligence and also, under the circumstances, its agency of proximate causation.

Automobile -- injury to volunteer assisting at accident -- concurrent cause of injury.

2. The evidence sustains the verdict insofar as it found that the negligence of the driver of the car which collided with the standing truck, if there was such negligence, was a concurrent rather than an independent intervening cause.

Automobile -- injury to volunteer assisting at accident -- contributory negligence of volunteer.

3. Inasmuch as the evidence did not show that the action of the deceased in rendering assistance in the emergency and attempting to give needed warning to others was one of extreme rashness, it cannot he held as matter of law that he was contributorily negligent.

Damages -- not excessive.

4. Deceased was 49 years old, an industrious carpenter, and owner of a small farm which he was improving by his own effort. His expectancy was 21.63 years. His surviving dependents are his invalid widow and three minor children. Verdict of $9,000 held not excessive.

Trial -- instructions -- phraseology used -- prejudicial effect.

5. Instruction that act of attempted rescuer, to preclude recovery otherwise proper, must be "clearly" one of recklessness, held error but without prejudice.

STONE JUSTICE.

Action for wrongful death wherein plaintiff had a verdict against both defendants. Defendant Bemidji Motor Service Company hereinafter mentioned as though it were the only defendant appeals from the order denying its motion for judgment notwithstanding or a new trial.

1. The Temanson truck loaded with cordwood became stalled while southward bound on trunk highway No. 71 somewhere north of Bemidji late in the afternoon of November 27, 1939. Defendant's service truck was called to the scene. It took position facing northward, or against the traffic, on the westerly, southbound lane of the highway. Darkness fell with the trucks in that position. The headlights of defendant's truck were on. With obvious negligence (3 Mason Minn. St. 1940 Supp. § 2720-264) defendant's driver, one Skaja, failed to set out flares, although he had them conveniently at hand on the truck. One motorist coming from the north, perceiving the danger, stopped long enough to free his mind to the two truck drivers, Temanson and Skaja concerning their inexcusable failure to set out flares as both facts and law demanded.

In this situation, Mr. Duff came from his home near-by to render assistance. Perceiving the danger, especially to traffic coming from the north on the west side of the highway which was blocked by the trucks, he took position in front of the left headlight of defendant's truck in order to warn southbound drivers by signaling them with his arm and a flashlight which he had with him. While in that position, a car driven by Mr. Wild came from the north. Wild did not perceive, until too late to avoid collision, whether that truck was stationary, or that it was blocking the southbound traffic lane. Mr. Duff was caught between the Wild car and defendant's truck and fatally injured.

The failure of defendant's chauffeur to use his flares as required by statute, 3 Mason Minn. St. 1940 Supp. § 2720-264 is enough without more to sustain the jury finding of negligence chargeable to defendant. That carelessness was aggravated by the fact that Townsend had stopped to protest against the failure to set out flares. The only excuse offered by Skaja was that he was going to get the trucks out of the way. His failure in that respect, the jury reasonably found, cost a human life, to say nothing of the injuries to himself and occupants of the Wild car. Both the negligence and its agency of proximate causation are made plain by the evidence.

2. For defendant it is argued that negligence of Wild in not avoiding the collision was an intervening and sole cause of the injury to Mr. Duff. Assuming negligence on the part of Wild, it was at least a question of fact whether it was concurrent with that of defendant rather than so independent of it as to be an intervening cause. Clearly, on the evidence, the question was for the jury. Johnson v. Sunshine Creamery Co. 200 Minn. 428, 274 N.W. 404.

The case is far from parallel with Engle v. Nelson, 220 Iowa, 771, 777, 263 N.W. 505, 509. Therein, the defendant, driving his car, saw the standing cars "when he was 1,200 or 1,400 feet away from them, and knew that they were upon the north half of the highway immediately in his path, and knew that they were stationary." In consequence, it was held that "the presence of a 'flare' or any other signal would have given him no more notice and no more knowledge than he had by actually seeing the stationary cars in front of him."

The rule so applied was that "a person who has knowledge of the presence of a train or auto which imparts to him the very thing that a signal was intended to impart cannot, under ordinary circumstances, predicate negligence on the failure to give a signal."

That statement of the rule highlights the futility of the argument for defendant. The northward-facing headlights of defendant's truck may have confused Wild. He was driving toward them. They were on his side of the road. There is evidence that they had not been depressed or dimmed. There is no hint that they were not of the usual high candle power. It is therefore apparent that a jury could reasonably infer a lack of negligence on Wild's part. Blinded as he probably was by the headlights of defendant's truck, the wisdom of the statutory requirement of flares is obvious. The presence of burning flares would have imparted to Wild additional and highly important warning of a hazard greater than and different from anything advertised to him in the absence of the flares. Twa v. Northland Greyhound Lines, Inc. 201 Minn. 234, 275 N.W. 846.

3. The principal claim of defendant is that Mr. Duff was contributorily negligent as matter of law. That we deny. The...