Quinn v. Zimmer
| Decision Date | 11 December 1931 |
| Docket Number | 28,647 |
| Citation | 239 N.W. 902,184 Minn. 589 |
| Parties | MATT QUINN v. EDWARD ZIMMER AND ANOTHER |
| Court | Minnesota Supreme Court |
Action in the district court for Fillmore county by the administrator of the estate of Henry J. Klomps to recover for his death and for damage to his auto as the result of a collision between decedent's auto, in which he was riding, and one owned by defendant Edward Zimmer and driven by his son, defendant Raymond Zimmer. Plaintiff recovered verdicts for $5,000 and $500, respectively, and defendants appealed from an order, Peterson, J. denying their alternative motion for judgment or a new trial. Affirmed.
Automobile -- collision at intersection.
The action arises out of an automobile collision at a highway intersection. It is held:
Automobile -- negligence of defendants.
1. The question of defendants' negligence was for the jury.
Automobile -- contributory negligence of decedent.
2. The question of decedent's contributory negligence was for the jury.
Automobile -- evidence of speed admissible.
3. It was not reversible error for the court to refuse, under the circumstances stated in the opinion, to strike as a conclusion of a witness her statement that an automobile traveled "just like a flash of lightning."
Automobile -- evidence of speed admissible.
4. The rate of speed of an automobile within four miles of the place of collision is admissible as bearing upon the claim of speed at the time of the accident.
Death -- damages -- evidence admissible.
5. It was not error to refuse to receive in evidence the general inventory filed in probate court in decedent's estate, as bearing upon the amount of damages resulting from his death.
Evidence -- opinion evidence as to market value of automobile.
6. The record discloses a sufficient qualification of a witness to testify as to the market value of the automobile involved.
Automobile -- evidence of conditions after accident.
7. It was not error to receive testimony as to the conditions at the place of the accident on the day following.
Trial -- no error in refusal to instruct when charge was complete.
8. The charge being complete, it was not error to refuse to give certain requests for instructions.
Automobile -- ruling on application of uniform highway traffic act not required.
9. The record does not require a ruling upon the application of § 18(b) of the uniform highway traffic act, L. 1927, c 412, 1 Mason, 1927, §§ 2720-1 to 2720-69, requiring one entering an intersection and turning to the left to give a plainly visible signal of intention to turn.
Victor E. Anderson, for appellants.
S C. Pattridge and Catherwood, Hughes & Alderson, for respondent.
Defendants appealed from an order denying their alternative motion for judgment non obstante or a new trial.
Defendant Edward Zimmer, a farmer, owned a Hudson automobile. It was a family car, and at the time of the accident hereinafter mentioned it was driven by his son, Raymond Zimmer, the other defendant.
On July 6, 1930, Raymond Zimmer drove the Hudson car east on trunk highway No. 9, and an accident occurred about three miles east of Spring Valley. Henry J. Klomps drove his Pontiac car north on a town road intersecting said trunk highway. His wife was by his side. His two daughters were in the rear seat. As the Pontiac passed into the intersection the two cars collided. Mr. Klomps was killed, and the Pontiac was damaged. Verdicts for $5,000 and $500, respectively, have been rendered. Other occupants of the Pontiac who were injured have received verdicts which have been paid, and their cases are not before us.
1. Defendants' negligence. They concede that the family car doctrine applies. The son was thoroughly acquainted with the locality, the existence of the side road, and the intersection, he having been reared in the community, living on a farm only one-half mile from the intersection. Near the southwest corner of the intersection is a church facing the trunk highway and standing about 40 feet from the south line thereof. Just to the west of the church is a dwelling house. The town road near the intersection is in a cut with banks about two and one-half feet high. These buildings are located on ground higher than the roadway in the trunk highway. In front of the dwelling house, and perhaps to some extent on the front portion of the church grounds, there are trees, shrubbery, telephone poles and a fence, all of which with the banks alongside of both roads near the corner to some extent obstructed the view for the driver of either car to see the other car approaching the intersection. The trunk highway was the usual well constructed and graveled trunk highway in Minnesota, and from the intersection its grade was slightly down hill to the west, dropping gradually about two and one-half inches to the hundred feet. From the intersection easterly the highway was also slightly down grade.
At a point about one and one-half miles west of the place of the accident Raymond Zimmer was driving at the rate of 60 miles per hour. When one-half mile west of the place of the accident he was driving 65 to 70 miles per hour. His speed attracted the attention of people along the trunk highway. One car got out of his way. Just before the accident a farmer living 60 rods north of the trunk highway heard the Hudson car make a noise like an aeroplane. He saw the dust rising over a cornfield. He heard the "bang" of the collision, and the aeroplane-like noise ceased. The noise of the collision "sounded * * * like a man striking a steel barrel with a sledge."
The driver admits that he was traveling 45 miles per hour immediately before the accident and that he did not see the Klomps car until it was in front of him and about 30 feet away.
The claim is that the Hudson was operated heedlessly in disregard of the rights or safety of others, and in a manner likely to endanger people and property; at a rate of speed greater than reasonable and proper having regard to the presence of the intersection and its conditions, and particularly in the presence of an obstructed view at the southwest corner of the intersection; in violation of the statute giving the driver on the right the right of way when two vehicles approach or enter an intersection at approximately the same time; all in violation of the uniform highway traffic act, 1 Mason, 1927, §§ 2720-3, 2720-4, 2720-18. The evidence is sufficient to support a finding that the driver was guilty of any or all of such claims. His negligence was for the jury.
2. Contributory negligence. Mrs. Klomps testified that Mr. Klomps looked both ways, east and west, when he reached the intersection. There was no stop sign on the side road. As the Klomps car entered the intersection, Mrs. Emma Loucks was driving a car from the east toward the intersection on trunk highway No. 9 and was about ten rods away. She said the Klomps car was on trunk highway No. 9 before she saw the Hudson, that she then saw the approaching Hudson and stopped her own car, which had been traveling slowly, between 100 to 150 feet of the place of the accident. The collision occurred quickly. All seemed to agree that the Klomps car entered the intersection traveling form 10 to 15 miles per hour.
We cannot say that Mr. Klomps at the time he entered the intersection knew and appreciated the situation as we now know it. He is dead. The law presumes that one who has met death acted in due regard for his own safety; and it is presumed that Mr. Klomps exercised due care for his own protection. This involved looking toward the west. He had the opportunity of seeing cars approaching from either direction upon this broad trunk highway. If he looked west he necessarily saw the approaching Hudson. Having seen it, he seemingly went straight ahead, perhaps veering to the northeast, as the collision became evident, instead of turning to the west as he had intended. The Hudson car was headed directly toward him. It would be difficult to judge its speed; until he saw or was charged with knowledge to the contrary, he had a right to assume that the driver of the Hudson would approach the intersection in a lawful manner. Stallman v. Shea, 99 Minn. 422, 109 N.W. 824; Day v. Duluth St. Ry. Co. 121 Minn. 445, 141 N.W. 795; Primock v. Goldenberg, 161 Minn. 160, 200 N.W. 920, 37 A.L.R. 484; Bradley v. Minneapolis St. Ry. Co. 161 Minn. 322, 201 N.W. 606, 46 A.L.R. 993; Klare v. Peterson, 161 Minn. 16, 200 N.W. 817; Tobisch v. Villaume, 164 Minn. 126, 204 N.W. 568; Anderson v. Duban, 170 Minn. 155, 212 N.W. 180; Rosenthal v. McCulloch, 177 Minn. 523, 225 N.W. 651; Reddy v. Rex Oil Co. 182 Minn. 139, 233 N.W. 853. Had the Hudson been so approaching, Mr. Klomps might have been able safely to pass in front of it.
The evidence is such as to make it permissible for the jury to draw the inference that Mr. Klomps looked and saw the Hudson, that he did not realize the speed at which it was traveling, that he reasonably decided that he, being to the right, had the right of way over the Hudson, and, without appreciating the impending danger, proceeded into what proved to be a fatal danger zone. This made the question of contributory negligence for the jury.
3. Mrs Loucks testified that from the position where she was, as hereinbefore stated, she could not form an opinion...
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