Ralston v. Tomlinson
| Decision Date | 10 May 1940 |
| Docket Number | 32350. |
| Parties | RALSTON v. TOMLINSON et al. |
| Court | Minnesota Supreme Court |
Appeal from District Court, Wadena County; J. B. Himsl, Judge.
Action by Opel L. Ralson, representative of the estate of Jason J Ralston, against Wesley Tomlinson and M. D. Tomlinson, to recover for the death of Jason J. Ralston, deceased. From an order denying defendants' alternative motion for judgment or a new trial, they appeal.
Order affirmed.
Syllabus by the Court .
In an action to recover damages for wrongful death, held that the issues of negligence and contributory negligence were properly submitted to the jury, for only fact questions were presented by the testimony.
Barron & Bradford, of Wadena, for appellant M. D. Tomlinson.
M. J Daly, Jr., of Perham and Faegre, Benson & Krause, of Minneapolis, for appellant Wesley Tomlinson.
Wieland & Sullivan, of Brainerd, for respondent.
Defendants, after an adverse verdict, moved for judgment notwithstanding or for a new trial. After denial, they appealed.
Plaintiff's decedent, Jason J. Ralston, was fatally injured when he was struck by an automobile operated by defendant M. D. Tomlinson and owned by defendant Wesley Tomlinson. Detailed testimony was introduced as to the circumstances surrounding the accident. Decision requires recital of only those that are decisive.
About 7:45 Christmas eve, 1938, Tomlinson was driving westerly on a county road. Its entire width of 24 feet was open to travel. An inch or two of snow had fallen during the day. Defendants claim the road was slippery in spots. Plaintiff disputes this. Passing vehicles had already made a single traffic lane. The south wheel track was slightly to the south of the road's center.
Immediately before the accident, Ralston was walking westerly along the south side of the road. His path was a foot or a foot and a half south of the left wheel track. He carried a lighted flashlight in his right hand.
Tomlinson estimated his speed to be 20 to 25 miles per hour as he drove near the crest of a hill, a point a short distance from the scene of mortal injury. Miss Shipley, a passenger, estimated the speed to be 25 or 30 miles per hour.
Defendants' version, stated factually, is as follows: As M. D. Tomlinson came over the crest of the hill, he first observed Ralston walking along the south side of the road about 100 feet away. He took his foot from the accelerator and turned the car to the right (north) so that the left wheels were in the right or southerly track made by the previously passing vehicles. When the car was 30 or 40 feet from Ralston, Tomlinson sounded the horn. Ralston left the path he was following and, as stated in the brief, ‘ stepped or darted across toward the north side of the road directly in front of the oncoming Tomlinson car.’ Miss Shipley testified that Ralston walked into the car's path, but later qualified this by saying that his movements were a ‘ little faster’ than a walk. The vehicle was 10 or 12 feet from Ralston when he ‘ darted’ into the way from his position of safety. Immediately Tomlinson applied the brakes. He testified: ‘ I skidded right ahead for a ways, I don't think the direction of the car varied any at all until I hit him and we came together on the hill there because where we collided was on the right-hand side of the road * * * and we skidded straight down for a distance from there and then the car skidded a little bit to the left * * * and then back off to the right * * *.'
Thus according to defendants, the impact occurred on the right side of the road and was occasioned by Ralston's unjustifiedly leaving the path he was following. To fortify this, testimony was introduced showing that the flashlight was found on the north portion of the road. It is also pointed out that the evidence...
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