Storbakken v. Soderberg

• Decision Date: 02 March 1956
• Docket Number: No. 36503,36503
• Citation: 246 Minn. 434,75 N.W.2d 496
• Parties: Noble C. STORBAKKEN, as trustee for the Estate of Ralph D. Storbakken, deceased, Respondent, v. Joseph E. SODERBERG, Appellant.
• Court: Minnesota Supreme Court

Page 496

75 N.W.2d 496

246 Minn. 434

Noble C. STORBAKKEN, as trustee for the Estate of Ralph D.

Storbakken, deceased, Respondent, v. Joseph E. SODERBERG, Appellant.

No. 36503.

Supreme Court of Minnesota.

March 2, 1956.

Syllabus by the Court.

1. Hypothetical question examined in light of record contained sufficient factual data to serve as basis for opinion as to speed of colliding vehicles and the court did not abuse its discretion in permitting answer by expert witness.

2. The driver of an automobile having directional right of way at intersection under M.S.A. § 169.20 forfeits such right of way by operating his vehicle at an unlawful speed in violation of § 169.14, subd. 3.

3. In accident at intersection where defendant's vision was obstructed on left by glare of sun and on right by grove of trees, where physical evidence indicated violent collision and eyewitness testified he approached intersection 'like a flash' going 'way over fifty,' question of defendant's negligence and decedent's contributory negligence was properly for the jury.

John W. Padden and Morris Dickel, Crookston, for appellant.

Olson & Holmquist, Warren, Rosengren, Rufer & Blatti, Fergus Falls, for respondent.

MURPHY, Justice.

Action pursuant to the wrongful death statute by the trustee for the estate of Ralph D. Storbakken against Joseph E. Soderberg to recover damages for the death of the decedent resulting from a collision between decedent's truck and defendant's car. Plaintiff was successful below, and defendant appeals from the order denying his motion for a new trial.

The collision out of which this case arose occurred on September 29, 1953, at about 6:30 p.m. The day was clear, the sunset bright in the west. Decedent was driving a 1949 Ford two-ton truck in an easterly direction on a dirt surface section-line road. The truck had a gross weight of approximately 15,040 pounds including a load of feed. Towing an Auger Elevator as it was, the total length of decedent's truck and elevator was between 41 and 51 feet. The road on which he was traveling was about 20 feet wide with a driving surface of 14 to 18 feet.

Defendant was driving a 1949 mechanically good Kaiser automobile having a gross weight of approximately 3,975 pounds in a general northerly direction on State Aid Road No. 10. No. 10 is a gravel surfaced road about 26 feet wide with a driving surface of approximately 24 feet.

The two roads form a 26-by-20-foot intersection with a somewhat smaller driving area. The entire vicinity is level, the only obstructions to vision being a grove of trees in the southeast corner of the intersection and the setting sun in the west.

The evidence relating to the relative speeds of the two vehicles is vague. An eyewitness, observing from inside her house about a quarter of a mile north-northeast, estimated the truck's speed at approximately 30 miles per hour. An expert witness for plaintiff arrived at a speed of 7 miles per hour. Defendant, as seen a moment before the impact by the same eyewitness, was going 'way over fifty,' and 'looked * * * like a flash.' Defendant testified that he was going 45 to 50 until he slowed down by intermittently applying his brakes when he was 150 to 175 feet from the intersection. At 50 to 55 feet, the point at which he first saw decedent's truck, he claimed to be going about 40 miles per hour and, having applied the brakes hard, only 5 to 10 miles per hour at the time of impact. Plaintiff's engineer adduced that he was traveling at the rate of 37 miles per hour at the time of impact.

The defendant's distance from the intersection when the truck entered is only conjectural, there being no evidence on the point other than defendant's estimate which apparently the jury did not accept. The point of impact has not been established, but it does generally appear to be about 5 feet east of the center line of No. 10. The left front of defendant's car came into contact with the right front of decedent's truck. Following the collision, the truck, which had been traveling east, was tipped on its right side and was facing north by slightly west with the rear of the truck touching the north edge of the road on which it had been traveling and the front on the east edge of No. 10. Decedent was thrown out and crushed under the grain box on the truck. Defendant's car stopped still facing generally north about 16 feet north of the east-west road and 12 feet east of the road on which he had been traveling.

1. The appellant contends the trial court erred in admitting the testimony of a civil engineer with reference to the speed of the vehicles at and prior to the time of impact. The testimony came from one Stanley S. Johnson who is a Bachelor of Science in Civil Engineering, is a consulting engineer, and teaches the subject of 'Analytical Mechanics of Moving Bodies, commonly referred to as Dynamics' at the University of North Dakota. He explained this subject has to do with 'the relationship between accelerations and forces and masses or weights of bodies, * * *.' From the facts given to him in the hypothetical question and from certain experiments conducted by him at the scene of the accident, he attempted to determine the velocity of the vehicles at point of contact and prior thereto by the use of two formulae. The first is based upon the law of conservation of momentum which theoretically determines the speed at which vehicles come together by calculation of factors, including the weight of the colliding vehicles and the distances traveled after impact. He attempted to determine the speed of vehicles at various points immediately prior to the impact by use of the coefficient of friction method as established by tables which purported to 'determine the relationship between the weight acting on the surface and the braking effect of the weight as it slides along.' The foundation for evidence based upon the latter formula was inadequate, and the expert's testimony with relation to it was so vague and unsubstantial as to deprive it of any material value as evidence. We confine our consideration to the expert's testimony relating to the conservation of momentum theory.

After a brief preliminary examination with reference to the witness' qualifications the following hypothetical question was submitted:

'* * * I ask you to assume these following facts: that an automobile weighing approximately 3435 pounds, with a load of 340 pounds including the driver, is traveling northward on a hard-packed gravel surface roadway of clay and dirt; also assume that this automobile is slowing down for an intersection located approximately a hundred and fifty to a hundred and seventy-five feet north by intermittently applying the brakes until the wheels commence to slide a total of three times; assuming further that after this process the driver of this automobile totally applies his brakes so that the four wheels are sliding a distance of fifty of fifty-five feet to a point in the northeast quarter of the intersection of these roadways where the car and the truck came into collision; assuming also that the weight of the truck with the load was 15,040 pounds and that the truck had been traveling in an easterly direction and had approached the automobile approximately at right angles; assuming also that the left front of the automobile and the right front of the truck collided; and further assuming that after the collision the automobile traveled in a northerly direction and came to rest in the ditch on the east side of the road, with the rear wheels approximately 16 feet four inches north from the north line of the township road and the front left wheels of the car approximately 12 feet three inches east from the east shoulder of the gravel road on which the car had been traveling; that the left front wheel of the automobile was damaged in the collision; and that the direction of travel of the truck was changed from an easterly direction to a northerly direction and that the truck came to rest on its right side, with the center of the truck approximately 22 feet north from the point of impact. Now, on the basis of those assumed facts which have been given to you previously, Mr. Johnson, have you been able to make, to formulate, to form an opinion as to the speed of the automobile at these various times (A) when the driver of the automobile first commenced to apply the brakes intermittently? Have you formed an opinion as to the speed of the automobile at that point?'

The witness testified that in his opinion the defendant was traveling at a speed of 37 miles per hour at point of impact. He also testified that at that point the decedent was moving at a speed of 7 miles per hour. The appellant contends that the court erred in permitting an answer to the hypothetical question because it assumed facts not in evidence.

Appellant specifically points out that the question assumed the accident occurred in the northeast corner whereas the point of impact was not determined. An examination of the record supports the reasonable inference that the impact occurred in the northeast quarter of the intersection near the center of the east-west center line. A witness who had an opportunity to observe the skid marks of the front two wheels of the decedent's truck placed them north and east of the center of the intersection. The fact that the question used the term 'northeast corner' when it might more clearly have referred to the area as the 'northeast quarter' was not a misstatement which would mislead the jury.

The appellant contends that the question assumes the center of the truck traveled 22 feet north of the point of impact and since no point of impact was determined this was not properly a part of the hypothetical question. But this assumption if it were false could not prejudice the defendant for the reason that it would only indicate a slower speed for defendant's car in that it indicated the truck was moved a shorter distance. It...