Te Poel v. Larson

• Decision Date: 09 May 1952
• Docket Number: No. 35674,35674
• Citation: 53 N.W.2d 468,236 Minn. 482
• Parties: TE POEL v. LARSON.
• Court: Minnesota Supreme Court

Page 468

53 N.W.2d 468

236 Minn. 482

TE POEL v. LARSON.

No. 35674.

Supreme Court of Minnesota.

May 9, 1952.

Syllabus by the Court.

1. Where 9 1/2-year-old boy, in attempting to cross a country road to his home after getting out of car in which he had been riding, was struck by a truck driven by defendant, it was for the jury to determine whether he was guilty of contributory negligence on the evidence in this case.

2. Where the burden of proving contributory negligence rests on the party against whom a presumption of due care operates, it is reversible error to instruct the jury that there is such a presumption.

Freeman, King, Larson & Peterson, Minneapolis, for appellant.

Lord & Walbran, Owatonna, for respondent.

KNUTSON, Justice.

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

Plaintiff's intestate, Russell Ray TePoel, lost his life when hit by a truck driven by defendant. The accident occurred on a road commonly known as the Oslo Road which runs in a north-south direction from the village of Kasson. The road was 29 1/2 feet wide from shoulder to shoulder, with ditches approximately two feet deep on each side. The surface of the road was covered with crushed rock. On the day involved, the road was covered with packed snow, but crushed rock stuck up through the snow.

Russell's parents lived on a farm on the east side of the Oslo Road about a half or three-quarters of a mile south of the village of Kasson. Their farmyard was entered from the road by a driveway over a 24-foot culvert. On the west side of the Oslo Road, directly opposite the south line of the driveway, was th family mailbox.

The accident occurred on January 18, 1950, about 4:30 p.m. The day was clear and cold, the temperature being about ten degrees below zero.

Decedent was a boy aged 9 1/2 years. On the day involved. he and his three sisters, Betty Jane, aged 13, Judith, aged 11, and Carol, aged 6, all of whom attended school in Kasson, took the school bus to the southeast edge of Kasson and then started walking home along the Oslo Road. When they had walked a short distance, they were picked up by a neighbor, Clifford Boyem, who was returning to his home, located farther south and a mile east of the Oslo Road. The four children sat in the back seat. Boyem stopped his car so that the back of it was about 10 or 12 feet south of the TePoel mailbox and with the right side of the car about two feet from the west ditch. The children got out of the right door on the west side of the car. Decedent proceeded ahead of his sisters, passing around the rear of the car, and started for the driveway to his home. When he was about in the center of the driveway, he was seen to look to the south, and thereafter he turned his course and ran more to the north. He was struck by defendant's truck, which was traveling north, some distance north of the driveway. Eyewitnesses differ as to just where the boy was struck, but the jury could find that it was some 40 feet or more north of the driveway and nearly in the east ditch. When the truck stopped, both front wheels and the right rear dual wheels were in the ditch. The left rear dual wheels were on the edge of the road, and decedent lay next to it, with his feet in the ditch and his body mostly on the ditch slope.

Defendant was a man 60 years of age. He lived three miles south of the TePoel farm on the Oslo Road. On the day involved, he was driving his 1 1/2 -or 2-ton 1935 International Truck in a northerly direction at a speed of about 20 miles per hour. He saw the Boyem car approaching from the north. He saw it stop by the TePoel mailbox and saw the children get out. He knew the children and knew that they were going to cross the road to their home. Boyem testified that when he stopped defendant was about 100 to 150 feet away. Defendant testified that he 'slacked up' when he saw the Boyem car stop, and that when he saw the children get out he again slacked up so that he was then going about 10 or 15 miles per hour.

1. Defendant contends that decedent was guilty of contributory negligence as a matter of law. We do not think so. When Russell emerged from around the back of the car, it was entirely consistent with his actions that he should assume that defendant would slow up or stop so as to let the children cross. While Russell was a boy of at least average intelligence, he only was 9 1/2 years old. He is chargeable only with that degree of care commensurate with his age and intelligence. After discovering his peril, he tried to escape by running to the north, and he would have succeeded if defendant had not taken the same course. Under all the facts disclosed by the evidence in this case, it was for the jury to say whether he acted as an ordinarily prudent boy of his age would have acted under the same circumstances.

Defendant relies on Warning v. Kanabec County Co-op. Oil Ass'n, 231 Minn. 293, 42 N.W.2d 881. There are many facts in that case distinguishable from those in the instant case. In the Warning case the boy involved was a year older. He rode a bicycle from a downhill driveway directly onto a heavily traveled highway and was struck by defendant's truck. He had no right to expect that the truck which hit him would or could stop, or that it could avoid hitting him.

2. Defendant next contends that it was error to instruct the jury that there was a presumption of due care on the part of decedent. As part of its charge to the jury, the court, over defendant's objection, gave the following instruction:

'It is the law, members of the jury, that a decedent, a person who was killed, is presumed to be in the exercise of due care at the time. Now, that presumption, members of the jury, is under the law an inference, a conclusion which the jurors have the privilege of drawing, but it is not mandatory on them if there is evidence to the contrary; in other words, the presumption can be rebutted or overcome if there is evidence which satisfies the jurors to the contrary.'

Thereafter, the court correctly instructed the jury as to contributory negligence and the burden of proving this issue.

The proper function and use of a presumption in the trial of lawsuits continues to be the source of much confusion on the part of bench and bar alike. It is a subject on which text writers, teachers of law, and authors of legal articles have written much ¹ and clarified little. The difficuty of formulating a rule that will cover all presumptions which can easily be applied in an instruction to a jury is aptly illustrated by the efforts of the American Law Institute (Model Code of Evidence) in preparing a proposed draft of such a model code of evidence. Rule 704 of the proposed code ² was a compromise between the rule advocated by the reporter (Professor Morgan), and favored by many of the advisers, ³ and so much of the so-called Thayer-Wigmore rule as it was deemed necessary to avoid the effect of the decision of the United States Supreme Court in Western & A.R. v. Henderson, 279 U.S. 639, 49 S.Ct. 445, 73 L.Ed. 884. The rule adopted was unacceptable to Wigmore. ⁴ It is questionable whether it will be accepted by the courts.

In Ryan v. Metropolitan Life Ins. Co., 206 Minn. 562, 289 N.W. 557, after a rather exhaustive examination of our cases and other authorities, we adopted what is commonly known as the Thayer-Wigmore rule. This rule, probably first clearly expounded by Thayer, ⁵ was later adopted and developed by Wigmore, ⁶ and is followed by the great weight of authority in this country. Annotation, 95 A.L.R. 880. In the Ryan case we said, 206 Minn. 568, 289 N.W. 560:

'With us a presumption does not shift the burden of proof. * * * This seems to be the point at which Mr. Morgan disagrees with the Thayer-Wigmore doctrine. His conclusion is that there should be a general rule, by 'uniform statute' if need be, 'that the sole effect of every presumption shall be to place upon the opponent the burden of persuading the trier of fact of the non-existence of the presumed fact.' * * *

'A presumption may and frequently does shift the burden of going on with the evidence. That is to say only that it makes a Prima facie case. If the trial stops there, without further evidence opposing the case so made, there is nothing for the jury. By nonsuit or directed verdict, the judge decides the issue as one of law. If, however, the Prima facie case is met by adequate evidence the case goes to the jury with the burden of proof where it was in the beginning. So the presumption is properly appraised as a mere 'procedural device' for allocation of the burden of going on with evidence. Where no further evidence is forthcoming, it requires decisions as matter of law for the unopposed Prima facie case. * * *

'It follows that if the case is one for the jurors the presumption should not be submitted as something to which they may attach probative force. The weight of the evidence is for them, to be ascertained on the scales of their experience and their judgment, rather than those of the judge. It would be an intrusion into their field to suggest that they substitute for any real evidence, or any reasonable inference therefrom, the assumed weight of something which is not evidence. A presumption not being evidence, it should be no more subject for such an instruction than any other nonevidentiary factor.'

This decision was hailed as at least a new starting point in a field of law that had been perplexing to bench and bar alike and in which our decisions were difficult to reconcile. ⁷ The case has since had rather dubious treatment, and subsequent cases have given cause for doubt as to whether we still follow the Ryan case or not. The early cases seemingly followed the Ryan case without much difficuty. In Hoelmer v. Sutton, 207 Minn. 140, 143, 290 N.W. 225, 227, where we affirmed after the trial court held that decedent was guilty of contributory negligence as a...