Shafer v. Gaylord, 41250

• Citation: 176 N.W.2d 745,287 Minn. 1
• Decision Date: 17 April 1970
• Docket Number: No. 41250,41250
• Parties: Patricia SHAFER, by Milton Shafer, her father and natural guardian, and Milton Shafer, individually, Respondents, v. Gary GAYLORD, Appellant.
• Court: Supreme Court of Minnesota (US)

Page 745

176 N.W.2d 745

287 Minn. 1

Patricia SHAFER, by Milton Shafer, her father and natural guardian, and Milton Shafer, individually, Respondents, v. Gary GAYLORD, Appellant.

No. 41250.

Supreme Court of Minnesota.

April 17, 1970.

Syllabus by the Court

1. The rescue doctrine, as developed in the law of negligence, is for the benefit of the rescuer and postulates that the original wrongdoer, whose negligent conduct threatens harm to another, may be liable to the rescuer who was injured as a result of an attempt to avoid the threatened harm.

2. A person who has ample opportunity for thought and reflection and, after appraisal of circumstances and action to be taken, negligently operates an automobile causing injury to another is not entitled to the benefit of the emergency rule.

3. In negligence action where a girl sustained injuries from the wheel of a truck being driven over her leg under circumstances where the driver of the truck had a prior opportunity to observe her predicament and determine the action to be taken, the trial court did not err in determining that the act of driving the vehicle over the injured girl's leg constituted an intervening, superseding cause of the injury.

[287 Minn. 2] 4. The court did not err in neglecting to instruct the jury with reference to allocation of damages as to different phases of injury where one phase of the injury was minimal and the jury attempted by its verdict to compensate for the serious and substantial injuries sustained by plaintiff.

5. The trial court did not err in directing a verdict for plaintiff under circumstances where it would have been his duty to set aside a contrary verdict as not justified by the evidence or as contrary to the applicable law of the case.

Sullivan, McMillan, Hanft & Hastings, and William P. O'Brien, Duluth, for appellant.

O'Leary, Trenti, Berger & Carey, Virginia, for respondents.

Heard before KNUTSON, C.J., and MURPHY, OTIS, ROGOSHESKE, and SHERAN, JJ.

OPINION

MURPHY, Justice.

This is an appeal from an order of the district court denying a motion for a new trial in a personal injury action. Defendant, Gary Gaylord, contends that the trial court erred in directing a verdict for plaintiffs. He argues that the trial court should have submitted the question of plaintiff Patricia Shafer's contributory negligence to the jury.

The following is from the trial court's memorandum in which the facts are succinctly stated:

'This trial arose out of an accident wherein the plaintiff fell from the side door of a Mister Softee truck as it was traveling down the highway. As the plaintiff was falling, she screamed, alerting the defendant driver. The defendant immediately applied his brakes, stopping the truck before any of the wheels passed over the plaintiff. He immediately jumped from the truck and noted that the plaintiff was lying in such a position that her leg was pinched to the pavement by the left dual wheel of the truck. The plaintiff's doctor testified that at this stage of the occurring events the plaintiff had not received any injuries. As the plaintiff was lying on the highway and the defendant driver was standing above her, the plaintiff told defendant driver to back the truck up so that she could free her leg. The defendant testified that he could see from the circumstances that it was imperative that the truck must be backed up to prevent serious injuries to the plaintiff. In any event, the defendant jumped back into the truck, and instead of placing the gear shift into reverse, he placed it into forward and ran over plaintiff's foot and leg, causing serious injuries to the plaintiff.

'Defendant's attorney requested the Court to instruct the jury as to contributory negligence on the part of the plaintiff, claiming that the falling from the truck and the ultimate injuries when the truck passed over plaintiff's leg constituted a natural sequence of events leading to her injuries, and now claims that the Court's failure to do so and the Court's directing a verdict as to liability is error.'

In contending that the trial court erred in directing a verdict for plaintiffs, defendant relies upon overlapping defenses including the rescue doctrine and the emergency doctrine, as well as contributory negligence. He argues that the minor plaintiff's asserted negligence in falling from the truck to the pavement placed him 'in the position of a rescuer, and to find him negligent as a matter of law when in the excitement and confusion of the moment he inadvertently moved the vehicle in a direction not intended' is to charge him with responsibility for 'conditions and circumstances * * * which * * * were of the plaintiff's own making;' and if in the emergency thus created plaintiff was injured, the causal responsibility therefor was a question of fact for the jury to decide.

1. We cannot agree that the rescue doctrine, which has been developed for the benefit of the injured rescuer, is of aid to defendant here. The doctrine makes the original wrongdoer whose negligent conduct threatens harm to another liable to the rescuer who is injured as a result of an attempt to avoid such threatened harm. National Dairy Products Corp. v. Freschi (Mo.) 393 S.W.2d 48; McConnell v. Pic-Walsh Freight Co. (Mo.App.) 432 S.W.2d 292; Kelley v. Alexander (Tex.Civ.App.) 392 S.W.2d 790; Seipel v. Sevek, 53 N.J.Super. 151, 146 A.2d 705; Walsh v. West Coast Coal Mines, Inc., 31 Wash.2d 396, 197 P.2d 233; Hawkins v. Palmer, 29 Wash.2d 570, 188 P.2d 121. We find no way in which that doctrine has application to the facts in this case.

2. Nor do we think that the emergency rule aids defendant. That rule, as expressed in numerous decisions, provides that when an operator of a motor vehicle is suddenly confronted with an emergency through the negligence of another and not through his own negligence and is compelled to act instantly to avoid a collision or injury, he is not guilty of negligence if he makes such a choice as a person of ordinary prudence placed in such a position might make, even though he does not make the wisest choice. The law does not demand that accuracy of judgment which would be expected under other circumstances, and in such cases, even though he makes a mistake, he will not be deemed to have been guilty of negligence or contributory negligence unless his choice of action is that which no ordinary prudent person would have taken under similar circumstances. Schmitt v. Emery, 211 Minn. 547, 2 N.W.2d 413, 139 A.L.R. 1242; 7 Am.Jur.2d Automobiles and Highway Traffic, § 359; 8B Dunnell, Dig. (3 ed.) § 4167b(17); Prosser, Torts (3 ed.) § 33.

We agree with the trial court that the facts in this case deprive defendant of the benefit of the emergency rule. Before defendant committed the negligent act which produced the injury, he had ample opportunity for thought and reflection. It cannot be fairly said that defendant was in a position where he had to make a speedy decision without an opportunity to appraise the course of action he should take.

3. Defendant next contends that plaintiff's alleged negligence in falling from the truck, and the movement of the wheel over her leg, were all circumstances in a chain of jural causes constituting one transaction and that defendant's act of operating the truck in the wrong direction could not...