Orrvar v. Morgan, 29465.

• Decision Date: 16 June 1933
• Docket Number: No. 29465.,29465.
• Citation: 189 Minn. 306,249 N.W. 42
• Parties: ORRVAR et al. v. MORGAN.
• Court: Minnesota Supreme Court

249 N.W. 42

189 Minn. 306

ORRVAR et al. v. MORGAN.

No. 29465.

Supreme Court of Minnesota.

June 16, 1933.

Appeal from Municipal Court of Duluth; Elmer W. McDevitt, Judge.

Action by Virginia Orrvar and others against Howard Morgan. From an order denying defendant's alternative motion for judgment notwithstanding the verdict or for a new trial, defendant appeals.

Reversed.

Mitchell, Gillette, Nye & Harries, of Duluth, for appellant.

Galen E. Bush, of Duluth, for respondents.

LORING, Justice.

Appeal from an order denying defendant's alternative motion for judgment notwithstanding the verdict or for a new trial.

August 19, 1932, at about 9 o'clock in the evening, Robert Orrvar, son of the plaintiffs was driving their large sedan along a paved highway leading into Proctor, Minn. In the car with Robert were five others, three girls and two boys. Robert, who was nineteen years old, was using the car with plaintiffs' permission. Defendant Morgan had been traveling on the same highway in the same direction when his motor stalled. He was endeavoring to push his truck off the highway when plaintiffs' car struck the rear of the truck and was damaged. It appears that Robert had his headlights tilted down, and he testified that he did not see the truck until he was so close that it was impossible to turn out to avoid striking it. The testimony tends to show that the defendant did not have a lighted tail-light on the rear of his truck as provided by statute. The jury found for the plaintiffs. Defendant appeals on the ground that the court should have found the plaintiffs' son guilty of contributory negligence as a matter of law.

It was a clear summer night, and Robert was traveling at the rate of about 30 miles per hour, but stated that he did not see the truck until he was about a rod away from it. He was not sure of the distance he could actually see ahead of the car, but he testified that in his judgment he could see 25 or 30 feet, or perhaps 35 or 40 feet, if "I strained my eyes." A mechanic testified that the lights when tilted down should cause enough illumination to make an object clearly discernible at 150 feet under normal atmospheric conditions.

1. Plaintiffs cite several cases of accidents of similar nature where the contributory negligence of the plaintiff has been held to be a question of fact for the jury and not a matter of law.

In Forster v. Consumers' Wholesale Supply Co., 174 Minn. 105, 218 N. W. 249, an accident similar to this one occurred, and this court held that the question of plaintiff's negligence was a question for the jury. There, however, the accident occurred on a dark December evening. The pavement was icy. Plaintiff met and passed a passenger bus, and turned out to the right of the pavement in so doing. His eyes were on the side of the pavement, and he was not looking ahead. He increased his speed upon passing the bus, and collided with the rear of defendant's truck which was parked upon the highway. It was said in that case: "Had the accident occurred in daylight, or had the bus not been present, we would probably have been required to hold that plaintiff was guilty of contributory negligence as a matter of law; but, under the circumstances shown, the question of contributory negligence was one of fact and for the jury."

In the case before us, Robert had passed no car previous to the collision; no other car was upon the road; there was no ice upon the pavement; and the night was clear. It would be difficult to distinguish the case before us from one of the hypothetical situations suggested in the Forster Case. See, also, the case of Brown v. Motor Transportation, Inc., 186 Minn. 321, 243 N. W. 112.

In Mechler v. McMahon, 180 Minn. 252, 230 N. W. 776, the night upon which the accident occurred was dark and misty, and a drizzling rain was falling. Plaintiff saw the truck ahead when about 70 or 80 feet away, and in endeavoring to pass he applied his brakes and skidded on the pavement into the rear of the truck. In the instant case it was a clear summer evening, and Robert did not see the truck until he was too close to turn out.

In Knutson v. Farmers' Co-Operative Creamery, 180 Minn. 116, 230 N. W. 270, 271, cited by respondent, this court said that the question of...