Raths v. Sherwood

Decision Date04 October 1935
Docket NumberNo. 30382.,30382.
Citation262 N.W. 563,195 Minn. 225
PartiesRATHS v. SHERWOOD.
CourtMinnesota Supreme Court

Appeal from District Court, Hennepin County; Mathias Baldwin, Judge.

Action by George Raths, as special administrator of the estate of Elmer Bahneman, against S. A. Sherwood. From a judgment for plaintiff, defendant appeals.

Affirmed, with direction to vacate special verdict.

Stanley S. Gillam of Minneapolis (Kelly, Thomas, Gillam, Morck & Dillon, of Minneapolis, of counsel), for appellant.

Richard Converse and Thos. J. Spence, both of St. Paul, for respondent.

HOLT, Justice.

Plaintiff, as special administrator, recovered a verdict of $7,500 against defendant Sherwood for the death of Elmer Bahneman, alleged to have been caused by Sherwood's negligent operation of his automobile on highway No. 3, about a mile north of Newport, where the roadway is an 18-foot pavement with the customary shoulders on either side. The accident occurred around 7:30 in the evening of February 20, 1933, a cold and blustery night. There is evidence that during defendant's drive from Madison, Wis., to the place of the accident sleet had been encountered, so that there was ice on the headlights and windshield of his car. The deceased had purchased a span of black horses that afternoon in South St. Paul, and with the aid of his brother-in-law, Walter Raths, was taking the horses to his home, some five miles north of Newport. Each led a horse by the halter, the halters were tied together with a short rope. The deceased led the nigh horse, and Walter Raths, the off horse. Plaintiff's evidence tended to show that after Newport was passed and going north up to the place of the accident, the men and horses traveled upon the right or east shoulder of the highway, the deceased walking nearest to the pavement and slightly ahead of the nigh horse. Sherwood, in his Ford coupé, overtook them. His testimony was that he was driving at about 27 miles per hour, that his headlights were lit, that he saw nothing in front of the car until a shadow passed, the car struck something, and the next moment he saw the deceased in the middle of the pavement about 15 feet in front of the car with his hands up over his head and felt a second thud against the car as he swung to the left, the car going partly into the west ditch and stopping, he claims, before it came to where the deceased lay on the pavement. He at no time saw any horse nor observed how deceased came to fall. The autopsy showed deceased to have received a terrific blow, so that his back was broken, the ribs of his left chest fractured, a rupture of the aorta, so that the thoracic cavity was filled with three quarts of blood. The road was straight and level from Newport up to and beyond where the accident occurred. There was one electric light about 400 or 500 feet south of the place of accident and one about 700 feet north thereof. The jury could find that these lights were burning, but that they had little effect on the visibility of objects at the place of the accident.

The main contention of defendant is that the court erred in denying his motion for judgment notwithstanding the verdict, his claim being that the proof failed to show actionable negligence on the part of defendant and that contributory negligence of the deceased appears as a matter of law. An attentive examination of the evidence is convincing that both these issues were for the jury. The car undoubtedly struck the nigh horse, inflicting a wound upon his left shank, when the handle of the right door was broken off, for in the break were found black horse hairs. The ornament on the radiator cap was also broken and in the break were similar hairs. The tie rod between the headlights was bent, and a small dent or two in the radiator and one in the right front fender were all the damage to the car. Walter Raths testified that the first he knew of anything out of the ordinary, as he was leading the off horse, walking beside its right side, was when the team made a jump toward the right ditch, and bolted across it. That brought the horses between him and the deceased, so that he could not tell what became of the latter, until the team passed by when he saw deceased lying about the middle of the pavement some little distance ahead. The law required defendant at that time of the night to have headlights so burning that he could see persons or animals within 200 feet in front. From his testimony that he never got a glimpse of the team, struck by the front part of his car, the inference is inescapable that either his headlights did not comply with the law or that he did not keep a proper lookout. Since the car was stopped short of where deceased lay, defendant contends that he was struck down and killed by the team and not by the car. But from all the evidence the jury could well reach the conclusion that the second impact defendant felt was when the car struck the deceased and hurled him in front. At any rate, the collision, whether with the horse or the deceased, was the proximate cause of the latter's death, and it was for the jury to determine whether or not it was caused by defendant's negligence.

There is no statute requiring persons leading an animal on the shoulders of a paved highway to carry a light after dark. It was for the jury to say whether the ordinarily prudent person would lead a span of horses after dark as deceased was doing at the place in question or would lead them upon the opposite shoulder. Section 2720-48 (g) Mason's Minn. St. 1927 Supp. 1934, leaves the question of negligence to the jury where a person drives a team after dark upon a highway without being equipped with a light.

Defendant also contends that, if not entitled to judgment non obstante, he should have a new trial because of errors in the trial. No extended comments need be made on the correctness of the rulings permitting witnesses who examined the locus in quo the morning of the next day to testify as to the tracks of horses along the shoulder of the highway and across the ditch to the right, about where the accident occurred, nor...

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