Peterson v. Lang
| Decision Date | 15 May 1953 |
| Docket Number | No. 35972,35972 |
| Citation | 239 Minn. 319,58 N.W.2d 609 |
| Parties | PETERSON v. LANG. |
| Court | Minnesota Supreme Court |
Syllabus by the Court.
1. The act of entering and driving upon a highway with knowledge of its slippery condition does not of itself constitute negligence in the absence of a showing that it involved an unreasonable risk of injury under the circumstances.
2. A ditch crossing designed as an entrance from a highway to an adjoining farmer's field is a private road or driveway within the meaning of M.S.A. § 169.20, subd. 4.
3. A vehicle on the highway is Approaching within the meaning of § 169.20 subd. 4, when such vehicle is so close that if it continues in the same course at the same speed, there is a reasonable likelihood or danger of collision should the vehicle on the private road or driveway enter upon or cross the highway.
4. The 'imminent hazard of a collision' test adopted in Moore v. Kujath, 225 Minn. 107, 29 N.W.2d 883 (175 A.L.R. 1007), in construing § 169.20, subd. 1, is for all practical purposes synonymous with the 'reasonable likelihood or danger of a collision' test held applicable herein under § 169.20, subd. 4.
5. Under Rule 51 of the Rules of Civil Procedure no party may assign as error unintentional misstatements and verbal errors or omissions in the charge unless the trial court's attention is distinctly called thereto before the jury retires to consider its verdict.
Brill & Brill, Minneapolis, for appellant.
Freeman, Larson & Peterson, Minneapolis, for respondent.
Plaintiff in a personal injury action appeals from a judgment for the defendant.
The automobile accident occurred January 2, 1950, at about 3 p.m., on a straight section of highway No. 212 about three miles west of Brownton, Minnesota, when a car driven in an easterly direction by plaintiff's husband and in which the plaintiff was a passenger collided with the rear of a car being towed by defendant's tow truck. The highway runs east and west and consists of two concrete slabs each 11 feet wide. The shoulders on both sides of the highway are four and one-half to five feet in width. Beyond the shoulder on the north side of the highway is a ditch about three and one-half to four feet deep. A section of this ditch is filled in to a width of 18 to 20 feet to provide a ditch crossing or road entrance to a field adjoining the highway. The highest part of this ditch crossing is level with the highway shoulder but from there declines toward the field. Near the accident scene a section of the highway shaded by a grove of trees was covered with glare ice. How far the glare ice extended to the west is undisclosed. The highway was generally clear of ice, but there was a little snow on the shoulders. A light snow, not sufficient to impair visibility, was falling at the time of the accident.
Defendant was engaged in towing out of the ditch on the north side of the highway a car belonging to one Melvin Mootz. This car had been pulled from the ditch onto the ditch crossing and the front end had been hoisted off the ground by a winch on the back of defendant's tow truck; Mootz remained in his car while it was being towed. Before defendant preceeded onto the highway, red lights on the back of his truck were burning and The truck itself was on the north shoulder facing in an easterly direction; the Mootz car was facing approximately in the same direction and rested on the ditch crossing. The defendant's tow truck was 18 feet long and the Mootz car, 16 feet long so that, with a two-foot space between the truck and the car, their over-all length was 36 feet.
Plaintiff's husband was driving his car east on the highway; plaintiff was in the middle of the front seat between her husband and her son. The car was moving at less than 40 miles per hour when plaintiff's husband first observed the defendant's tow truck and the Mootz car on the north shoulder about one-half mile ahead of them.
The evidence most favorable to the verdict is that the defendant started across the north lane of the highway when the Peterson car was 990 to 2640 feet to the west. The defendant pulled to his right across the north lane at a southeasterly angle at about five miles per hour and then moved into the south lane where he straightened out and proceeded in an easterly direction. Within 15 seconds after starting across the highway, both the tow truck and the Mootz car were entirely within the south lane. The front end of the truck had traveled about 111 feet and the rear of the Mootz car had traveled about 75 feet In an easterly direction in such south lane when the right front part of the skidding Peterson car hit the center of the rear of the Mootz car thereby causing plaintiff's injuries. Although the Peterson car was traveling partially in the north lane, the actual impact occurred in the south lane. After the accident, the defendant's truck and the Mootz car were in the south lane and the Peterson car was in the north lane.
The jury returned a verdict for the defendant. Plaintiff's motion for a new trial was denied and judgment for the defendant was entered. This appeal is taken from that judgment.
The issues raised by this appeal relate to alleged errors in trial court's instructions with respect to (1) negligence as a matter of law, (2) the applicability of the right-of-way rule under M.S.A. § 169.20, subd. 4, and (3) proximate cause.
1. Was defendant negligent as a matter of law in entering upon the highway and crossing the north lane to enter the south lane with the Mootz car behind his tow truck when he actually knew that the pavement area at the scene of the accident was covered with slippery glare ice which, when reached by the approaching Peterson car, would make it difficult to keep such vehicle under control? What a man may reasonably anticipate, in the light of all the surrounding circumstances such as the condition of the road surface and the nearness and speed of approaching vehicles, is important and may be decisive in determining whether an act is negligent. 1 The act of entering and driving upon a highway with knowledge of its slippery condition does not of itself constitute negligence in the absence of a showing that it involved an unreasonable risk of injury under the circumstances. As usual, the evidence herein is conflicting. The evidence most favorable to the verdict, however, establishes that, when the defendant started across the highway, the Peterson car was from about one-fifth to one-half mile to the west. The record is silent as to how far the icy section of the highway extended in a westerly direction from the accident scene. Since the plaintiff did not prove how far west the icy surface extended and since the defendant did not admit that he knew the icy condition extended far enough to the west to prevent the Peterson car from stopping in time to avoid a collision, the question of whether the defendant should reasonably have anticipated that starting onto the highway under the circumstances involved an unreasonable risk of injury was properly left to the jury's determination. The evidence under the circumstances is sufficient to sustain a finding of no negligence on the part of the defendant.
2--3. Did the trial court err in its instructions to the jury with respect to the application of § 169.20? 2 The trial court instructed the jury as follows:
'* * * In determining whether the statute applies, you must, of course, first determine whether or not the defendant Lang entered the highway from a private roadway or farm approach. Also, you must find that the Peterson automobile was approaching the farm crossing so close as to constitute an Immediate hazard; that is, was the Peterson car so close to the defendant Lang's truck that if the Peterson car maintained its same course and the same rate of speed that then a collision would be Inevitable if the defendant Lang proceeded across the highway. If it was, then the Peterson car may be said to be approaching the point where the defendant's truck, within the meaning of the law, where the defendant's truck was located, and under such circumstances the Peterson car would have the right-of-way.
'If at the time the defendant Lang entered the highway the Peterson car Was so far away that a reasonably prudent person would have no reason to believe that if the Peterson car...
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