Olson v. Purity Baking Co.
| Decision Date | 01 April 1932 |
| Docket Number | No. 28698.,28698. |
| Citation | 185 Minn. 571,242 N.W. 283 |
| Parties | OLSON v. PURITY BAKING CO. et al. |
| Court | Minnesota Supreme Court |
Appeal from District Court, St. Louis County; Martin Hughes, Judge.
Action by Leona Olson against the Purity Baking Company and others. The action was dismissed as to all the defendants except the defendant named. Verdict in favor of the plaintiff. From an order denying its motion in the alternative for judgment notwithstanding the verdict or a new trial, the defendant, named appeals.
Affirmed.
Lewis, Hunt & Palmer, of Duluth, for appellant.
Essling & Bundlie, of Eveleth, and Fryberger, Fulton & Boyle, of Duluth, for respondent.
Gust Kinetz, who was driving an autotruck for defendant from Duluth to the Iron Range, noticing that the generator for the lighting system was not properly charging the battery, stopped on the Miller trunk highway some 23 miles north of Duluth, at about 1:30 a. m. on the morning of August 1, 1930, for the purpose of putting some dressing on the belt operating the generator to prevent its slipping. As the truck was thus standing, a Ford sedan driven by plaintiff's brother came up from behind, crashed into the truck, and burst into flames. In the front seat of the Ford beside the driver was plaintiff, and next to her was a Mr. Ostlund. Ostlund was killed outright, and plaintiff was severely burned and otherwise injured. Plaintiff brought this action against appellant, her brother, the driver of the Ford, her mother, the owner thereof, and the insurer of the mother against liability arising out of the operation of the car. Before or during the trial, the action was dismissed as to all defendants except appellant, who will hereinafter be designated as defendant. The complaint charged that defendant's truck "was unlawfully, carelessly, negligently and wrongfully parked and standing on the paved portion of the" highway. Defendant's answer was a general denial, with certain admissions not now important, and containing the defense allegations that plaintiff's injuries resulted solely from her own and her brother's negligence. The sharply disputed issues of the trial were whether the truck was parked wholly or only with the left wheels on the pavement, and whether its tail-light was burning. The body of the truck, reached some 10 feet from the ground, was 7½ feet wide and some 19 feet long, painted white. The tail-light was near the top of the left-hand corner of the body, about 9½ feet from the ground. The Ford carried the usual driving headlights, and was being driven at a speed of 35 miles an hour. The night was very dark, but no evidence of other atmospheric conditions at the point of the accident which would interfere with vision. Plaintiff and her brother both testified that they were looking straight ahead and did not see the truck until they were within so few feet of it that the crash came before there was an opportunity to make a move. Defendant by experiment and photographs taken during a night of similar darkness, with the truck in practically the same position, and seated with the camera in a Ford of a type like that in which plaintiff rode at the time of the collision, sought to convince the jury that the truck was visible, so that, if plaintiff and her brother had used ordinary care, they could have discovered it in time to have passed safely. Plaintiff offered testimony to the effect that the tail-light of the truck was not burning when the collision took place. Defendant adduced testimony that it was lit, but the inference from that testimony was that, owing to the slipping of the generator belt, the battery was weakened and the taillight as well as the headlights were dimmer than usual. The verdict was for $6,950, nearly $2,000 of which represents loss of clothing and wages, and the cost of hospital, nurse, and medical services. Defendant appeals from the order denying its motion in the alternative for judgment notwithstanding the verdict or a new trial.
The errors assigned are too numerous to separately discuss, and we follow the grouping of them that counsel has pursued in the brief. The first relate to rulings during the trial. The incident in respect to the cross-examination and redirect of Harold Olson, concerning his testimony in a previous trial of a case growing out of this accident, does not afford ground for a new trial. The trial court rectified the error, if any, by directing the jury to disregard the answer to a question objected to. Over objection, Harold Olson was permitted to testify that he would have seen the tail-light on the truck if there had been one lit. It may be conceded that technically the witness testified to a conclusion and not a fact. Hathaway v. Brown, 22 Minn. 214; McKenzie v. Banks, 94 Minn. 496, 103 N. W. 497. But see the last part of the opinion in Fonda v. St. Paul City Ry. Co., 77 Minn. 336, 79 N. W. 1043. It may also be said in justification of the ruling that it was so difficult for the witness to describe the visibility then existing that it was permissible to state his conclusion or opinion regarding the ability of a person to notice the tail-light if it were burning. "Facts may be submitted to a jury in the form of an opinion when they cannot otherwise be adequately or easily described." 2 Dunnell, Minn. Dig. § 3315. The cross-examination of defendant's manager, Butler, in view of his position, cannot be held to have taken a too wide scope. The court properly restricted the attempted impeachment of Butler.
One Quigley was a witness for plaintiff; he, in company with one Fitch, came to the scene of the collision within a minute or two after it happened. Approaching from the north they were so near that they heard the crash and saw the Ford burst into flames. Fitch was not a witness, and plaintiff's counsel, over objection, elicited from Quigley that Fitch was an insurance adjuster, and thereafter attempted to make improper use of such evidence. But we think the trial court thwarted counsel in this so that we are unable to see that any prejudice could have resulted to defendant. As soon as it appeared that Quigley testified only to what he was told by Fitch, the court struck the testimony from the record. In connection with Quigley's examination as a witness, a controversy arose between counsel as to insurance companies being interested in plaintiff's case as well as defendant's, when the court interposed this remark: "So far as the parties to this case are concerned I take it the insurance company representing the defendant only is interested." In a way defendant's counsel provoked the remark, for he knew that the case had been dismissed as to plaintiff's mother who carried insurance on the Ford, and just before the court used the quoted words defendant's counsel had stated that an insurance company was interested in the defense. This incident cannot be deemed of sufficient importance to call for a new trial.
Error is assigned upon the refusal of the court to direct a verdict for defendant and the refusal to give two requested instructions. On the proposition that defendant was entitled to a directed verdict are cited Sorenson v. Sanderson, 176 Minn. 299, 223 N. W. 145; DeHaan v. Wolff, 178 Minn. 426, 227 N. W. 350; Weyhe v. Minneapolis St. Ry. Co., 179 Minn. 172, 228 N. W. 754. The first two relate to accidents happening during daylight where there was no question as to the visibility of the on-coming vehicle. The Weyhe Case was one where the plaintiff in the nighttime...
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