Rengstorf v. Winston Bros. Co.
| Citation | 208 N.W. 995,167 Minn. 290 |
| Decision Date | 14 May 1926 |
| Docket Number | No. 25250.,25250. |
| Parties | RENGSTORF v. WINSTON BROS. CO. |
| Court | Minnesota Supreme Court |
Appeal from District Court, Hennepin County; W. A. Schultz, Judge.
Action by Fred Rengstorf, as administrator of the estate of John Havenmeier, deceased, against the Winston Bros. Company. After verdict for defendant, plaintiff's motion for new trial was granted, and defendant appeals. Reversed, with direction.
Kenny, Lohmann & Gardner, of St. Paul, for appellant.
Mueller & Erickson, of New Ulm, and Cobb, Wheelwright, Hoke & Benson, of Minneapolis, for respondent.
Action for death by wrongful act, in which there was a verdict for defendant. Plaintiff's motion for a new trial was granted exclusively because of the error of law which the learned trial judge considered he committed in submitting to the jury the issue of contributory negligence. We agree with that conclusion. Deceased was riding in the nighttime in a lumber wagon drawn by a team owned and driven by a neighbor, Mr. Schiller. In passing over a high embankment recently constructed by defendant as part of a state trunk highway, one of the horses stumbled and fell, dragging his teammate, the wagon, and its occupants down the embankment. The result was fatal to Mr. Havenmeier. There is no evidence tending to show any negligence on his part which contributed to the accident. So the presumption that he was in the exercise of due care must control, and the issue of contributory negligence should not have been submitted to the jury.
There is another aspect of the case which we think calls for a reversal and the entry of judgment for defendant on the verdict. The deceased and Schiller were on their way home from New Ulm. For some distance before reaching the place of the accident they traveled over a temporary road along the side of the new embankment. That road terminated in a temporary ramp, which carried it onto the fill. From that point on, the embankment was being used for travel. It had not been surfaced, and the usual guard rails had not been erected. The accident occurred after the ascent of the ramp had been completed. A guard rail would have prevented it.
Defendant had a contract with the state for the grading, and nothing else. It was not thereby required to do any surfacing or erect any guard rails. The work was done under the supervision and inspection of the highway engineers. It was for them to say when the new road, or any portion thereof, should be opened for temporary or other use by the public. Defendant had nothing to say to that, and under its contract could not have prevented the use of the fill by the public after its completion and before its final and formal acceptance. It stands proved if not conceded that defendant's contract had been completed to the entire satisfaction of the highway department some time before the accident, but that it was not formally accepted until shortly afterwards. The contract was between defendant and the state. The deceased was not a party thereto, and his personal representative cannot predicate any right thereon. To that extent the rule of Winterbottom v. Wright, 10 M. & W. 107, and Heaven v. Pender, L. R. 9 Q. B. Div. 302, remains undoubted law.
The only duty of defendant with which plaintiff is now concerned was to execute the work with due care to prevent injury to those lawfully using it pending its construction. The provisions of the contract are therefore material only to the extent that they impose obligations for the benefit of users of the road, and so may have something to say to the question of due care. Otherwise the contract is immaterial. It is not the basis of liability, but merely a fact for consideration.
The specific charge of negligence in the complaint is that defendant allowed the highway "to be and remain in a dangerous condition without providing suitable curbs, guards, or rails, or any lights, signals, or signs or other warning or a watchman to prevent accidents; * * * negligently failed to erect a suitable barricade to call attention of travelers to the danger of traveling on said highway or to divert them therefrom; negligently failed to make or keep said highway free from ruts and undulations."
The portions of the contract which counsel deem material, and upon which they predicate liability, are these:
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