Oxborough v. Murphy Transfer & Storage Co.

• Decision Date: 18 April 1935
• Docket Number: No. 30269.,30269.
• Citation: Oxborough v. Murphy Transfer & Storage Co., 194 Minn. 335, 260 N.W. 305 (Minn. 1935)
• Parties: OXBOROUGH v. MURPHY TRANSFER & STORAGE CO. et al.
• Court: Minnesota Supreme Court

260 N.W. 305

194 Minn. 335

OXBOROUGH v. MURPHY TRANSFER & STORAGE CO. et al.

No. 30269.

Supreme Court of Minnesota.

April 18, 1935.

Appeal from District Court, Dakota County; W. A. Schultz, Judge.

Action by Helen M. Oxborough, special administratrix of the estate of Edward P. Oxborough, deceased, against the Murphy Transfer & Storage Company and others. Judgment for plaintiff, and the named defendant appeals.

Affirmed.

Daggett, Redlund & Burke, of St. Paul, for appellant.

Stinchfield, Mackall, Crounse, McNally & Moore and John M. Palmer, all of Minneapolis, for respondent.

JULIUS J. OLSON, Justice.

Plaintiff, as special administratrix of the estate of her husband who lost his life in an automobile accident, was successful below in her action to recover damages under the death by wrongful act statute. There were two defendants, both corporate, but the only one involved here is the Murphy Transfer & Storage Company, the action having been dismissed by the court as to the other. Hereafter we shall refer to that company as defendant. At the close of the trial defendant moved for an instructed verdict. That motion being denied and plaintiff having been awarded damages by the jury's verdict, it moved for judgment notwithstanding but made no motion for new trial. This motion being denied, judgment was entered, and the appeal is from the judgment.

On November 15, 1933, at about 10 o'clock at night plaintiff's intestate was driving his Chevrolet coach in a southerly direction on highway No. 52 near Fort Snelling. One of defendant's servants was operating a large truck going northerly. This highway is of concrete 27 feet in width flanked by dirt shoulders four or more feet in width. The pavement is divided into three distinct lanes of traffic, there being narrow strips of a tar substance clearly indicating the boundary of each lane. At the point of collision the highway is straight and level over a considerable distance both to the north and south thereof. The night was cold and the pavement slippery with frost. There was difficulty on the part of drivers in keeping frost off their windshields so as to leave an unobstructed view. The westerly lane carried south-bound traffic, the easterly lane north-bound, and the center lane was used, and so intended, for passing vehicles. The truck was 22 feet 10 inches in length and eight feet in width, and weighed 8½ tons. It was equipped with a double set of hard rubber rear tires. In addition to its own weight it also carried a steel cable and other material weighing at least an additional ton. Immediately after the collision the front part of defendant's truck was found to extend from a point west of the black line limiting the easterly boundary of the westerly lane 1½ to 2½ feet. The witness Spandle, who came upon the scene immediately after the crash (he was near enough to hear it), testified that: "It [the truck] occupied part of the center lane, the other part occupied the westerly lane." There is other testimony of the same or similar import. The driver of the truck on cross-examination testified as follows:

"Q. When you saw him coming, you turned to your left? A. I did not, I stayed in my easterly lane until he was about eight feet from me.

"Q. Did you stay there all the time? A. I stayed there all the time.

"Q. And when he was eight feet from you, you turned to the left? A. I started to turn to the left, and it happened so quick that before I traveled any to my left he crashed into the truck.

"Q. How fast were you traveling? A. At the time, I was not going more than ten miles an hour. When I saw him swaying, I slowed down.

"Q. When he was eight feet from you, you turned to your left for the first time? A. Yes.

"Q. The collision occurred on your left-hand side of the road, did it not? A. On my right-hand side of the road.

"Q. Your truck did not move any after the collision? A. I did not move."

The car and truck were so tied together because of the violence of the impact that it took considerable time and force to pull them apart. The witnesses are in agreement that immediately after the collision the truck was facing in a northwesterly and the Chevrolet in a southwesterly direction. Both vehicles were badly smashed, especially the Chevrolet, the entire front of which was pushed back. Photographs of the car and truck indicate that the collision was practically a head-on affair. The witnesses for defendant were the truck driver and two others, all occupying the same seat in the truck. These men were employees of defendant. The Chevrolet, according to the testimony of these witnesses, was traveling very rapidly, estimated at between 50 and 60 miles per hour, and was being driven in a zigzag fashion, first traveling on one side of the pavement and then swaying to the other. Photographs taken after the accident (identified by competent witnesses and disclosing the spot where the cars were found after the collision) afford interesting information. There can be no question but that the evidence sustains the finding of the jury that the collision took place at or slightly to the west of the westerly edge of the center lane.

Plaintiff's intestate received such injuries that he regained only a momentary consciousness in the hospital and died less than two days after the accident. Thus the only eyewitnesses to the accident were the truck driver and his two helpers. These men had been hard at work over a period of some 16 hours unloading a heavy boiler weighing about 15 tons. One of the men testified that he felt as though he had worked two days at a stretch.

Defendant urges: (1) That the evidence fails to establish negligence on its part; (2) that the evidence conclusively shows contributory negligence on the part of the deceased; and (3) that the positive evidence of the truck driver and his two assistants had overcome the presumption of law that the deceased was in the exercise of due care at the time and place of accident.

Questions for review upon this appeal are strictly limited. In Smith v. Gray Motor Co., 169 Minn. 45, 46, 210 N. W. 618, 619, the court said: "As defendant rests upon its motion for judgment without asking for a new trial, errors at the trial, whether in the rulings or in the instructions to the jury, cannot be reviewed or considered. The only question for consideration is whether it clearly appears from the record that plaintiff is not entitled to recover." (Citing cases.) Thom v. Northern Pacific Ry. Co., 190 Minn. 622, 252 N. W. 660; Eichler v Equity Farms, Inc. (Minn.) 259 N. W. 545; 3 Dunnell, Minn. Dig. (2 Ed. & Supps. 1932, 1934) § 5085. Defendant made no objection to the charge nor was any exception taken thereto. Under such circumstances "instructions to the jury not objected to become the law of the case whether right or wrong." Smith v. Gray Motor Co., 169 Minn. 45, 47, 210 N W. 618, 619, and cases cited. The court, in its instructions to the jury, said: "The only possible theory on which any negligence can be based on the part of the driver of the Murphy truck is that the defendant operator of the Murphy truck was on the wrong side of the center of the highway. There is no positive evidence, no positive testimony in this case that he was on the wrong side of the highway at the time the accident happened. The presumption being that the plaintiff was in the exercise of due care at the time of the accident, and this being an avoidable...