Sathrum v. Lee

Decision Date17 April 1930
Docket NumberNo. 27739.,27739.
PartiesSATHRUM v. LEE.
CourtMinnesota Supreme Court

Appeal from District Court, Goodhue County; Chas. P. Hall, Judge. Action by Henry Sathrum against Ephrine P. Lee. Verdict for plaintiff, and, from an order granting defendant a new trial, plaintiff appeals.

Affirmed.

A. J. Rockne, of Zumbrota, for appellant.

Cobb, Hoke, Benson, Krause & Faegre, of Minneapolis, for respondent.

STONE, J.

In this action for personal injuries arising out of an automobile collision, plaintiff had a verdict and appeals from an order granting defendant a new trial because alone of errors of law.

The accident occurred on the late afternoon of June 28, 1927. Defendant, operating his own car with plaintiff as his guest, was driving south from Red Wing on Goodhue county highway B en route to Kenyon. As they went over a hilltop there was a head-on collision with a Dodge sedan belonging to the state highway department and driven by one Anderson. The case was tried and went to the jury upon the theory that the question of defendant's negligence was one of fact, and the jury was told in substance that, if he was negligent, it was because he had violated the provisions of the Uniform Highway Traffic Act, Mason's St. 1927, § 2720-1 et seq. The main charge of negligence relied upon by plaintiff seems to have been that defendant was traveling in the center, or to the left of the center, of the road when he should have been on the right side, or at least upon "the right half of the traveled portion of the highway" (section 2720-9). His admitted speed of about 35 miles an hour was another item of alleged negligence in violation of statute. There is testimony that the car driven by Anderson was going at between 25 and 30 miles an hour. The highway at the place in question and for some distance each way was graded and graveled to a width of about 22 feet. But notwithstanding, it is insisted for defendant, in substance, that there was but one lane of travel which "straddled" the center of the grade. He testified also that "my car and the Dodge were both straddling the center of the road but a little bit more to the west," that is to defendant's right.

As defendant topped the hill, he saw the other car immediately in front of him, the collision inevitable, and, so he testifies, concluded that the only possible chance of escape was to his left, where there was no ditch, rather than to his right, where there was one. He says that with that idea he turned to the left, but the collision resulted notwithstanding. Defendant's thus turning to his left, rather than to his right (Mason's St. 1927, § 2720-11), is the final act of negligence charged against him.

Defendant requested an instruction that, if an emergency had been created by the negligence of the other driver without negligence on the part of defendant, in consequence of which the latter, "acting as a reasonably prudent man under the circumstances, turned his car from his right to his left side of the road to avoid the collision, then the fact that the collision may have occurred upon the east side of the road (defendant's left side) would not necessarily constitute a violation" by defendant of the statute requiring him to travel on the right-hand side of the road and to pass on the right vehicles proceeding in an opposite direction. The instruction was refused, because, in the opinion of the learned trial judge, "it conflicts with the state law," meaning doubtless the Uniform Highway Traffic Act, hereinafter quoted.

1. For plaintiff it is objected that defendant's request for the instruction came too late to be considered because it was not submitted until after the charge was otherwise complete. The answer is that the learned trial judge did consider the request. The jury had not retired. Counsel for defendant frankly admitted that he should have brought the subject up before, and in substance asked and procured leave to submit the request. While under the statute, Mason's Minn. St. 1927, § 9298, requests for instructions should be submitted "before the argument begins," there is nothing to prevent the trial judge from doing as he did here and considering such requests whenever presented. There is nothing in the statute limiting the power of the court. The most that can be said is that the trial judge is "not required to consider" special requests which are not "seasonably" presented. Gracz v. Anderson, 104 Minn. 476, 116 N. W. 1116. In consequence, such requests may be ignored, and error cannot be based thereon when they were not submitted until after the jury retired. Hall v. Johnson (Minn.) 229 N. W. 867 (opinion filed February 28, 1930).

2. We cannot agree that the requested instruction embodied anything in conflict with the law of the road as now expressed in the Uniform Highway Traffic Act. Mason's St. 1927, § 2720-1 et seq. By section 2720-9 it is required that upon all highways of sufficient width, except one-way streets, vehicles...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT