Roberts v. Kettner, 40588

• Decision Date: 16 August 1968
• Docket Number: No. 40588,40588
• Citation: 161 N.W.2d 302,281 Minn. 203
• Parties: Marion ROBERTS, Appellant, v. Herman KETTNER and Mark S. Kettner by Herman Kettner, his guardian ad litem, Respondent.
• Court: Minnesota Supreme Court

Page 302

161 N.W.2d 302

281 Minn. 203

Marion ROBERTS, Appellant, v. Herman KETTNER and Mark S. Kettner by Herman Kettner, his guardian ad litem, Respondent.

No. 40588.

Supreme Court of Minnesota.

Aug. 16, 1968.

Syllabus by the Court

1. There being no claim that plaintiff as the driver of the leading automobile in a rear-end collision was negligent, the sole issue raised is whether the conduct of defendant driver constituted negligence as a matter of law. This court has never followed an automatic rule that would impose liability in all cases where the driver's foot slips off the clutch or brake, thereby causing a collision with a vehicle ahead. The burden of proof was upon plaintiff to establish that defendant driver was negligent and that plaintiff suffered damages as the result of such negligence. Implicit in the jury's general verdict was the finding that defendant driver was not negligent, or, in the alternative, that plaintiff suffered no damages resulting from the accident.

2. Where the movements of defendants' automobile were not covered in detail by the statutes governing driving upon the highways due to the existing situation's not being a routine traffic movement, the judgment of a jury as to what constitutes reasonable care was permitted to determine this question.

Roger J. Hargrave, Duluth, and Jerome Kaner, Eveleth, for appellant.

Hammer, Weyl, Halverson & Watters, Duluth, for respondents.

Heard before KNUTSON, C.J., and NELSON, MURPHY, ROGOSHESKE, and FRANK T. GALLAGHER, JJ.

OPINION

NELSON, Justice.

The jury in district court having found for defendants, plaintiff appeals from an order denying her motion for judgment notwithstanding the verdict on the issue of liability and a new trial on the issue of damages, or, in the alternative, a new trial on all issues.

If all conflicts in the evidence are resolved in favor of the prevailing parties below, the facts appear to be as follows: The accident involved occurred in Duluth on September 9, 1964, at about 3:30 p.m. Plaintiff, Marion Roberts, and defendant driver, Mark S. Kettner, were both proceeding south on Hawthorne Road. It appears that at the time of the accident the road was wet and the weather was cloudy. Defendant's car was following plaintiff's car in a heavy line of traffic, apparently moving at a stop-and-go rate. Plaintiff drove through the intersection of First Street and Hawthorne Road and came to a stop about a car length south of First Street on Hawthorne Road.

The testimony of defendant as to the sequence of events immediately prior to the collision is as follows:

'Q. All right. What was your intention as respecting your movement when you observed that condition ahead?

'A. I was planning on stopping behind the Roberts' vehicle.

'Q. Tell us just what you did then from that point up to the time of the collision.

'A. I got up approximately to the north curb line on Hawthorne--on First Street coming down Hawthorne Road. I depressed my clutch. I was--I was using the brake. I had cut down to, oh, a very slow speed, probably two or three miles an hour. When I came into--well, when I came across the other curb line, the one on the south side of First Street, this is when my foot slipped off the clutch, and the car accelerated forward, and I struck Mrs. Roberts.

'Q. All right. What was the condition of the--of your shoes at that time?

'A. They were damp.

'Q. What was the condition of the ground and the streets in the vicinity at this time?

'A. It was damp.

'Q. What sort of a shoe did you have on by the way?

'A. A shoe similar to the ones I have on now, composition sole.

'Q. And are they what they call loafers?

'A. Yes.

'Q. That is, they were not laces?

'A. Yes.

'Q. Can you give us your best judgment as to the speed that your car accelerated to by the time it had its collision with the Roberts' car?

'A. A maximum of five miles an hour.

'Q. And before your foot slipped off the brake, what is your judgment--off the clutch, before your foot slipped off the clutch, what is your judgment of the speed that you had reduced to?

'A. Two or three miles an hour.

'Q. When your foot slipped off the clutch, what attempt, if any, did you make to overcome that difficulty?

'A. I tried to depress the brake, but I didn't do it fast enough.'

Defendant's testimony as to his speed prior to impact and the location of the two vehicles at the time of impact was corroborated by his passenger, Wallace Saline.

The record indicates that the car did not collide with enough force to move defendant against the steering wheel, but with sufficient force to cause him to ask his passenger if he was all right and if he had hit the dashboard. Passengers in plaintiff's car were likewise thrown forward.

The fact that plaintiff's automobile received some damage in the accident appears to be undisputed. Some damage to both cars was admitted by defendant and by defendant's witness Saline and the investigating police officer. Plaintiff's witness, Pat Colalillo, operator of a body shop, corroborated the damage to her car.

Dr. Carl Eklund testified that plaintiff suffered an extension-flexion injury to her neck and upper spine as a result of the collision. Plaintiff claims that this testimony by her doctor was not rebutted by defendant.

Plaintiff claims that the trial court erred in denying her motion for a directed verdict and her post-trial motion in that established facts and permissible inferences are so certain that reasonable minds must agree that defendant Mark Kettner was negligent as a matter of law.

1. There has been no claim that plaintiff as driver of the lead automobile was in any way negligent. This being so, the sole issue on this appeal is whether the conduct of defendant was negligent as a matter of law or whether negligence was a question for the jury. Plaintiff claims that defendant was negligent as a matter of law, relying on Souden v. Johnson, 267 Minn. 151, 125 N.W.2d 742, and Wilson v. Sorge, 265 Minn. 125, 97 N.W.2d 477, as controlling.

We think the following statement made by the court in the Souden case indicates it does not control the fact situation in the case at bar (267 Minn. 154, 125 N.W.2d 743):

'It is true that Stephenson v. Wallis, 181 Kan. 254, 311 P.2d 355, 72 A.L.R.2d 1, is authority for the proposition that the operator of a moving vehicle whose foot slips from the brake pedal is not guilty of negligence as a matter of law when, as a result, a collision with a vehicle ahead results. It is not necessary, however, that the rule of that case be accepted or rejected at this time. In the case before us defendant was stopped for several seconds before she permitted or caused the car she was operating to move forward and into the car ahead. The accident did not result from an operating movement made suddenly and, therefore, imperfectly. It was simply a case of a driver diverting her attention from the business of controlling her car for a reason which we consider to be inadequate justification.'

Wilson v. Sorge, supra, is likewise not in point. In that case defendant's truck violated the statute requiring a truck to travel a prescribed distance behind the vehicle ahead and collided with plaintiff's vehicle which had stopped to make a left turn. No evidence was offered by defendant to justify the statutory violation, and this court thus held the directed verdict to be proper.

Our court has never followed an automatic rule that would impose liability in all cases where the driver's foot slips off the clutch or brake, thereby causing a collision with a vehicle ahead.

In Ranum v. Swenson, 220 Minn. 170, 19 N.W.2d 327, this court rejected the automatic 'look-and-not-see' rule--that failure to see that which is in plain sight necessarily constitutes negligence as a matter of law. The court in the Ranum case said (220 Minn. 174, 19 N.W.2d 330):

'We expressly reject the policy of applying arbitrary standards of behavior amounting in effect to rules of law to all cases without regard to surrounding circumstances.'

Also see Shoop v. Peterson, 237 Minn. 61, 53 N.W.2d 633; and Abraham v. Byman, 214 Minn. 355, 8 N.W.2d 231, where this court stated:

'Since standards of prudent conduct, especially in negligence cases, are generally for jury determination, courts should exercise great caution in framing standards of behavior that amount to rules of law.'

This court has applied this caution in so-called rear-end collision cases. For instance, in Wimperis v. Satzinger, 273 Minn. 121, 140 N.W.2d 323, the court sustained the finding of the jury in favor of the following car, referring to the fundamental rule that the facts and circumstances of each case rather than the nature of the accident dictate the results.

As defendants contended, the burden still rests with plaintiff to establish negligence. In Tibbetts v. Nyberg, 276 Minn. 431, 150...