Primock v. Goldenberg
| Decision Date | 05 December 1924 |
| Docket Number | 24,296 |
| Citation | 200 N.W. 920,161 Minn. 160 |
| Parties | HARRY H. PRIMOCK v. J. E. GOLDENBERG |
| Court | Minnesota Supreme Court |
Action in the municipal court of Minneapolis to recover $600 for damages to an automobile. The case was tried before Charles L. Smith, J., who ordered judgment against defendant for $500. From an order denying his motion for a new trial defendant appealed. Affirmed.
When chauffeur approaching street intersection at right of plaintiff does not have absolute right of way.
Defendant in a street intersection automobile collision case was approaching from plaintiff's right. Plaintiff held not guilty of contributory negligence as a matter of law simply because he admitted that when he entered the intersection he observed defendant approaching 125 feet away at 35 miles an hour, such a speed that if "both proceeded into the intersection, there would be a collision." The statutory right of way rule does not absolve a chauffeur approaching too rapidly from the right from the duty of slowing down and otherwise using due care for the protection of others at and on the intersection. The finding that plaintiff was not negligent as a matter of law is justified because he had a right to assume, he being first on the intersection, that defendant would reduce his speed so as to permit plaintiff to clear the crossing in safety.
Joseph H. Kaminer, Cobb, Wheelwright, Hoke & Benson and R. A Scallen, for appellant.
Sam J. Levy, for respondent.
This appeal puts before us another more or less typical street intersection automobile collision case. The trial was without a jury. The findings were for plaintiff, a motion for a new trial was denied and defendant appeals.
The collision occurred at the intersection of Western avenue and Ninth street north, Minneapolis, the parties not being able to agree as to the precise point of collision, nor as to several other important circumstances. In view of its approval below, we must take plaintiff's testimony as the basis for our consideration of the one claim urged as ground for reversal that plaintiff was guilty of contributory negligence as a matter of law. Plaintiff was driving west on Western avenue, reasonably close to the north curb. The northeasterly corner at this intersection is "blind", i.e., it is occupied clear to the building line by two and three story buildings, so that there is no vision north on Ninth street from Western avenue until one is on or almost on Ninth street.
Plaintiff's version is that he approached Ninth street at not to exceed 15 miles an hour; that he could not see and did not see defendant approaching from the north and on his right, until he, plaintiff, was at the easterly curb line of Ninth street; and that then he observed defendant coming at a point about 125 feet away and on the west side of Ninth street. He says defendant's speed was "very fast" and estimated it at 35 miles an hour. Both streets at this point are occupied by double street car tracks. Plaintiff held his course until he was on the westerly track on Ninth street, and then, perceiving that a collision was imminent, swerved to the left in an effort to avoid it, or at least minimize the impact. The cars came together, defendant's machine going into plaintiff's head on and hitting it approximately in the middle of the right side. As indicated, the parties do not agree as to just where the collision occurred, and it doesn't make much difference which one is right. In any event it is clear that plaintiff's machine was not struck until it was well past the middle of Ninth street, and probably not until in his tack to the west he had gotten west of the west curb line of Ninth street and south of the center line of Western avenue.
The argument that contributory negligence appears as a matter of law is based upon the following excerpt from plaintiff's testimony, who at the moment referred to was at the point where he first observed ...
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