Olson v. Hiel, 13912.

• Decision Date: 03 November 1949
• Docket Number: No. 13912.,13912.
• Citation: 177 F.2d 552
• Parties: OLSON v. HIEL et al.
• Court: U.S. Court of Appeals — Eighth Circuit

177 F.2d 552 (1949)

OLSON v. HIEL et al.

No. 13912.

United States Court of Appeals Eighth Circuit.

November 3, 1949.

Ira C. Peterson, Jr., Minneapolis, Minn. (Freeman, King, Larson & Peterson, Minneapolis, Minn., were on the brief), for appellant.

Archie L. Gingold, St. Paul, Minn., for appellee Minnie Hiel.

Leavitt R. Barker, Minneapolis, Minn. (Charles F. Noonan and Dorsey, Colman, Barker, Scott & Barber, Minneapolis, Minn., were on the brief), for appellee Rudolph Aberg.

Before SANBORN, JOHNSEN, and RIDDICK, Circuit Judges.

SANBORN, Circuit Judge.

Minnie Hiel, a citizen of Wisconsin, brought this action against Rudolph Aberg and Grant K. Olson, citizens of Minnesota, to recover for personal injuries resulting from the collision of Aberg's automobile, in which she was riding, with the automobile of Olson. The collision occurred on the evening of November 21, 1947, just north of St. Paul, Minnesota, in the intersection of two double-lane highways known as United States Highways Numbers 8 and 10. In her complaint the plaintiff alleged that the accident and her injuries were caused by the negligence of both drivers. Aberg in his answer admitted the collision, admitted that Olson was negligent, but denied that he, Aberg, was negligent. Olson in his answer also admitted that the collision occurred, but denied that he was negligent and asserted that the accident and the plaintiff's injuries were due solely to the negligence of Aberg. The issues were tried to a jury, which returned a verdict for the plaintiff for $10,000 against Olson, and a verdict for Aberg. This meant that, under the evidence and the instructions of the court, the jury found that Olson was solely to blame for the collision and the plaintiff's injuries. Judgment was entered on the verdicts, and this appeal followed.

Olson presents two questions for review: (1) Did the court err in refusing to instruct the jury as follows:

"Where a highway includes two roadways 30 feet or more apart, then every crossing of each roadway of such divided highway by an intersecting highway shall be regarded as a separate intersection. In the event such intersecting highway also includes two roadways 30 feet or more apart, then every crossing of two roadways of such highways shall be regarded as a separate intersection."¹

(2) Did the court err in commenting upon the testimony of Olson's witnesses? If the first question is answered in the affirmative, it will be unnecessary to consider the second question, since there is no reason to anticipate that the same comment, whether proper or improper, will be made upon a retrial. The controlling substantive law is that of Minnesota.

At the point where the two highways in suit intersect, the lanes of each are more than 30 feet apart. The lanes of each highway up to the point of intersection are separated by a boulevard. The highways do not intersect at right angles. Highway Number 8 runs from Minneapolis north to Forest Lake. Highway Number 10 runs from St. Paul to and through Anoka in a northwesterly direction. North bound traffic on Highway Number 8 uses the east lane of that highway, and south bound traffic uses the west lane. These lanes will be referred to, respectively, as the north bound lane and the south bound lane of Highway Number 8. Northwest bound traffic on Highway Number 10 uses the right-hand lane as one faces northwest, and southeast bound traffic uses the opposite lane. These lanes will be referred to, respectively, as the northwest bound lane and the southeast bound lane of Highway Number 10. The intersection of the highways is protected by traffic lights electrically operated. When the lights controlling traffic on the lanes of Highway Number 10 are green at the intersection, those controlling the lanes of Highway Number 8 are red, and vice versa. In other words, when the lights indicate "Go" on both lanes of one highway, they indicate "Stop" on both lanes of the intersecting highway.

The plaintiff's testimony showed that, shortly before the accident occurred, she and her brother were riding with Aberg in the northwest bound lane of Highway Number 10; that they intended to turn right into the north bound lane of Highway Number 8 and to proceed to and through Forest Lake, Minnesota; that they inadvertently failed to turn right onto Highway Number 8, and at the next crossover on Highway Number 10 turned left into the southeast bound lane of that highway and returned to the intersection; that, as they reached the intersection, the traffic light facing them...