Shearer v. Puent, 25106.

• Decision Date: 26 March 1926
• Docket Number: No. 25106.,25106.
• Citation: 166 Minn. 425,208 N.W. 182
• Parties: SHEARER v. PUENT et al.
• Court: Minnesota Supreme Court

208 N.W. 182

166 Minn. 425

SHEARER v. PUENT et al.

No. 25106.

Supreme Court of Minnesota.

March 26, 1926.

Appeal from District Court, Lake County; H. J. Grannis, Judge.

Action by William Shearer against H. B. Puent and others. Judgment for plaintiff, who appeals from an order denying his motion for a new trial on the ground of inadequacy of damages. Reversed.

Abbott, MacPherran, Dancer, Gilbert & Doan, of Duluth, for appellant.

Baldwin, Baldwin, Holmes & Mayall, of Duluth, for respondents.

DIBELL, J.

Action to recover for personal injuries. There was a verdict for the plaintiff. He appeals from the order denying his motion for new trial upon the ground of inadequacy of damages.

1. Though the damages awarded are inadequate, the plaintiff cannot prevail upon his appeal if the record presents no right of recovery; that is, if his own negligence contributed to the injury or if the defendants were not negligent. Young v. Great Northern Ry. Co., 83 N. W. 32, 80 Minn. 123; Maki v. St. Luke's Hospital Ass'n, 142 N. W. 705, 122 Minn. 444. And it is the claim of the defendants that the plaintiff was negligent, and that the evidence does not sustain a finding that they were. The trial court held that the questions of negligence were for the jury.

2. About midnight of November 6, 1924, the plaintiff went with a wrecking car to the assistance of an automobile which had gone off the northerly side of the highway some ten miles beyond Duluth toward Two Harbors. He was unable to get the car back on the highway by working from the north side. He placed his wrecking car on the southerly side and chained the front end to a telephone pole. He then stretched a chain across the road, and attached it to the car off the highway, and by use of the windlass was working it back onto the grade. The defendants came with their car from Duluth, going to Two Harbors, and ran into the chain, tipping over the wrecking car and injuring the plaintiff.

It is the claim of the defendants that the plaintiff was negligent in extending the chain across the highway. In assisting the wrecked auto the plaintiff was not making an improper use of the highway. He was not a trespasser. Fischer v. McGrath, 128 N. W. 579, 112 Minn. 456; Nye v. Dibley, 93 N. W. 524, 88 Minn. 465. In was his duty to exercise ordinary care to avoid injuring others using the highway. There were six or seven lights on the wrecking car and two on the car off the road. It was about 1 o'clock in the morning. A car coming from Duluth saw the wrecking outfit without trouble, and avoided doing injury; and so another, though it may have been coming from Two Harbors. Some effort was made by the plaintiff to warn approaching cars, and there is evidence that the car of the defendants was signaled or flagged at a point where the jury might have found that a warning would have been effective. Whether the plaintiff used the required care was for the jury. We are in accord with the view of the trial court, expressed on the defendants' motion for judgment notwithstanding the verdict, which, however, is not here for review, as follows:

"In view of all the circumstances as disclosed by the evidence, the court is of the opinion that the question of plaintiff's contributory negligence was properly left to the jury. The plaintiff was not a trespasser in occupying the highway for a limited time for the purpose of rescuing the car which accidentally went off the road into the ditch. In so using the highway the plaintiff was bound to exercise ordinary care for the safety of others traveling upon or using it, and to not unnecessarily obstruct the highway. * * * Questions as to the extent to which plaintiff was making use of the highway, the necessity therefor, whether in using the highway he was exercising ordinary care for the safety of others, were necessarily issues of fact for the jury, unless the evidence was conclusive that the plaintiff was negligent. There was some dispute in the testimony as to the sufficiency of the precautions taken by plaintiff or others for warning approaching travelers of the obstruction in the road. Then the time when plaintiff was obstructing the road, the same being in the early hours of the morning, had a bearing upon the reasonableness of the care taken and precautions provided. ...