Ruby Olson v. Fred Neubauer And Another
| Decision Date | 07 November 1941 |
| Docket Number | 32,874 |
| Parties | Ruby Olson v. Fred Neubauer And Another; Midway Garage, Appellant |
| Court | Minnesota Supreme Court |
Action in the district court for Mower county on behalf of Ruby Olson, a minor, by Andrew J. Olson, her father and natural guardian, to recover for injuries sustained by her in a collision between the auto of defendant Neubauer, in which she was riding, a service truck belonging to defendant Midway Garage, and a car driven by one Stucky. The case was tried before Norman E. Peterson, Judge, and a jury. After verdict of $1,000 in favor of plaintiff against both defendants, the Midway Garage appealed from the judgment. Affirmed.
Weyl & Weyl, for appellant.
Sasse French & Dunnette, for respondent.
The opinion of the court was delivered by: Stone
Automobile -- care required of person creating dangerous highway situation -- service truck aiding disabled car.
1. Where one creates a dangerous situation on a public highway his duty is to exercise a degree of care commensurate thereto in warning others. The evidence concerning this three-vehicle collision supports the jury's finding of appellant's negligence and that it was concurrent with his codefendant's.
Trial -- reading statute to jury -- prejudicial effect.
2. Where its spirit and purpose cover the case, the reading of a statute to the jury is not prejudicial error, notwithstanding its "exact wording" may not be applicable.
Appeal and error - notice of appeal -- service -- "adverse parties."
3. Co-defendants in the ordinary negligence case are not adversary parties within the meaning of the statute requiring service of a notice of appeal to this court "on the adverse party."
Plaintiff a passenger in the automobile of defendant Neubauer, was injured when that car collided with a service truck of defendant Midway Garage and a passenger car driven by one Stucky. This is a separate appeal by defendant Midway Garage from the judgment for plaintiff against both defendants.
1. The collision occurred about one o'clock a.m. on a straight level stretch of 20-foot paved highway. Visibility was fair, but the concrete was somewhat glazed by ice.
Appellant's truck was parked facing east of south, with about six feet of its body on the pavement and its front wheels on the shoulder. The driver and one Jenson, appellant's night manager, were about to pull a disabled car out of the north ditch.
Jenson had placed flares on the north shoulder some 200 feet east and west of the ditched car. Shortly before the Neubauer car approached, Jenson, with a flashlight, was standing at the rear of the truck directing traffic past the scene. The Stucky car had approached from the west. Jenson stopped it 20 to 30 feet from the truck and directed three westbound cars to pass. He then signaled the Stucky car to proceed.
That was the scene as the Neubauer car came into it from the west. There were five red lights across the top rear of the truck's cab and two taillights. Its headlights were shining into or across the ditch. There were also twin taillights on the Stucky car.
The evidence is that the Neubauer car, traveling about 30 miles per hour, met and passed the last of the three westbound cars some 80 to 90 feet west of the truck. At that moment the Stucky car was moving forward toward the center of the pavement, around Jenson and the rear of the truck. Jenson was waving his flashlight. Neubauer, apprised of the peril too late, failed in his attempt to avert collision by passing between the truck and the Stucky car. He first crashed into the truck and then the Stucky car.
There is a charge of negligence grounded upon appellant's failure to warn Neubauer of the dangerous situation properly and in time. Appellant's claim is that it was guilty of no negligence or that, regardless, there was none which was the proximate cause of plaintiff's injuries. For the latter contention, reliance seems to be placed upon the principles of such cases as Goar v. Village of Stephen, 157 Minn. 228, 196 N.W. 171, and Peterson v. Martin,138 Minn. 195, 164 N.W. 813, to the effect that negligence as proximate cause is precluded by the intervention of an efficient, independent force.
There is merit in the argument that the nine variously colored lights across the road would justify a conclusion that Neubauer was given all notice of the peril which reasonable care could demand. If so, his negligence in not heeding the warning could be considered sole proximate cause of the collision. But there is an opposed inference, implicit in the verdict, which is also reasonable.
The action, viewed in retrospect, is cinematic and rapid. As Neubauer came over a rise one-third of a mile to the west, he had come through...
To continue reading
Request your trial