Riser v. Smith
| Decision Date | 11 May 1917 |
| Docket Number | 20,235 - (76) |
| Citation | 162 N.W. 520,136 Minn. 417 |
| Parties | OTTO RISER v. CHESEBRO SMITH |
| Court | Minnesota Supreme Court |
Action in the district court for Clay county by the guardian of Fred Fischer, a minor, to recover $2,900 for injuries sustained through collision with an automobile. The answer alleged negligence, and violation of the laws of North Dakota and the ordinances of the city of Fargo by plaintiff. The case was tried before Nye, J., who, at the close of the testimony denied defendant's motion for a directed verdict, and a jury which answered the questions mentioned in the first paragraph of the opinion and returned a verdict for $2,000. From an order denying his motion for judgment notwithstanding the verdict or for a new trial, and from the judgment entered pursuant to the verdict, defendant appealed. Affirmed.
Negligence -- contributory negligence -- verdict sustained.
1. Plaintiff, minor, riding a motorcycle on a city street, was injured by collision with an automobile. The evidence sustains the jury's finding that the defendant was negligent and that plaintiff was not.
Violation of speed ordinance negligence.
2. Violation of a speed ordinance by the driver of an automobile is negligence per se, and it is not rendered any the less so because the police of a city resolve not to enforce the ordinance.
Law of the case -- admission of evidence.
3. Instructions to the jury, not excepted to, while for some purposes the law of the case, do not furnish the test by which the admissibility of evidence is to be determined.
Damages.
4. The damages are not excessive.
Barnett & Richardson and Charles S. Marden, for appellant.
Christian G. Dosland and Victor Oleson, for respondent.
1. Plaintiff, minor, riding a motorcycle on a street in Fargo North Dakota, came into collision with an automobile driven by defendant, and was injured. He sued for damages and recovered a verdict. In answer to specific questions, the jury found that the defendant was negligent, that his negligence caused the injury, and that the plaintiff was free from negligence. Defendant contends there is no evidence to sustain such a verdict, and particularly claims that the evidence is conclusive that plaintiff was guilty of contributory negligence.
Plaintiff was riding north. He was on the right-hand side of the street. His evidence is that his speed was moderate and that he was riding with care. Defendant was driving south. Ahead of him was another automobile. Defendant turned to the left to pass it, and, while he was passing, the collision with plaintiff occurred. In passing this automobile defendant drove somewhat to the left of the center of the street. Plaintiff's evidence is that defendant was driving from 25 to 30 miles an hour, that he turned out to pass the other car so suddenly that plaintiff was unable to get out of his way, and the collision followed. The evidence sustains a finding that defendant was negligent, and it also sustains the finding that defendant's negligence was such as to cause plaintiff's injury.
The question of plaintiff's contributory negligence is a more doubtful one, but we are of the opinion that it was not conclusively made to appear that plaintiff was negligent. Plaintiff testified that he was looking ahead. He also testified that he did not see defendant's car approach. He did see the other car ahead of defendant. Defendant's car was in plain sight for some distance, and plaintiff must have seen it if he looked ahead, but so long as it continued on the right-hand side of the street behind another car, its presence was not such as to attract special attention or call for effort on plaintiff's part to avoid it. There was ample space then between their courses of travel. Plaintiff testified that he saw defendant's car as soon as it began to turn out. So far as appears, there was nothing to indicate to any one that defendant intended to turn out to pass the car ahead of him until he actually did turn out for that purpose. Plaintiff was traveling well to the right-hand side of the street, and until defendant turned his car as above indicated there was no occasion for plaintiff to give him further room. If defendant was traveling at the speed claimed by plaintiff, but a very few seconds elapsed between the time ...
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