Storey v. Weinberg

• Decision Date: 02 April 1948
• Docket Number: No. 34514.,No. 34515.,34514.,34515.
• Citation: 226 Minn. 48,31 N.W.2d 912
• Court: Minnesota Supreme Court
• Parties: STOREY et al. v. WEINBERG et al.

31 N.W.2d 912

226 Minn. 48

STOREY et al. v. WEINBERG et al.

No. 34514.

No. 34515.

Supreme Court of Minnesota.

April 2, 1948.

Appeal from District Court, St. Louis County; Mark Nolan, Judge.

Actions, tried together, by Benjamin Storey and others against Harry E. Weinberg and others, for personal injuries. From orders granting new trial after jury returned verdicts for defendants, Etta R. Weinberg and others appeal.

Affirmed.

Abbott, MacPherran, Dancer & Montague, of Duluth, for Etta R. Weinberg.

Jenswold, Butchart & Dahle, of Duluth, for MacDonald Motor Co.

George Torwick, pro se.

Henry A. Courtney, of Duluth, for respondents.

MATSON, Justice.

Defendants appeal from orders granting a new trial to plaintiffs in two personal injury actions tried together.

On August 28, 1946, an automobile owned by defendant Etta R. Weinberg and driven by defendant George Torwick, an employe of defendant MacDonald Motor Company, struck and injured plaintiff Benjamin Storey, III (hereinafter referred to as Benjamin), a five-year-old boy. Mrs. Weinberg had left her car with the MacDonald company for greasing and washing. She was unable to call for the car when the greasing and washing was completed, and so, in accordance with a practice followed on a number of prior occasions, the MacDonald company directed one of its employes to drive the car to the Weinberg residence, whereupon Mrs. Weinberg entered the car as a passenger for the purpose of accompanying the driver back to the garage, where for the first time she would personally take over the actual operation of the vehicle. At about 4:30 p. m. on the return trip to the garage, with Torwick driving, the accident occurred at the intersection of Woodland avenue and Lewis street in Duluth, Minnesota. The Weinberg car was proceeding south on Woodland avenue toward the intersection with Lewis street. A short distance ahead of the Weinberg car was a trolley bus going in the same direction. This bus drew up to the curb at a bus stop just north of the intersection on the west side of Woodland avenue. In passing the parked bus on the left side, the Weinberg car struck Benjamin as he ran out past the front end of the bus. Benjamin, accompanied by his mother and his younger brother, had been walking on the north sidewalk of Lewis street toward Woodland avenue. As they neared the intersection, Benjamin, who had gone on somewhat ahead of his mother, cried "I am going to cross before this bus starts," and ran out in front of the bus into the path of the Weinberg car. The evidence is in conflict as to the speed of the Weinberg car, but it would permit a finding that it was going about 25 to 30 miles per hour.

Benjamin, by his father and natural guardian, brought an action against all three defendants for damages for personal injuries. Benjamin's father and mother also personally sued the three defendants for medical and hospital expense incurred in the treatment of their son. The actions were tried together, and in both cases the jury returned verdicts for defendants. Plaintiffs thereupon made, and the court granted, a motion for a new trial in each action. The motions were granted on the ground of errors of law occurring at the trial, said errors being set out by the court as consisting of its inadvertent omission from the charge to the jury of several requisite instructions as to speed (M. S. A. § 169.14, subds. 1, 2, 3) which it had agreed previously to give. At the time of the hearing upon plaintiffs' motions, the MacDonald company moved for dismissal on the ground that as a matter of law Torwick was not its agent and employe when the accident happened.

1-2-3. The granting of a motion for a new trial on the ground of erroneous instructions to the jury, unlike a denial thereof, rests largely in the sound discretion of the court, and its decision will not be disturbed on appeal unless there has been a clear abuse of that discretion.¹

In the instant case, defendants contend that the trial court erred in granting a new trial, in that plaintiffs, by wholly failing to call the attention of the court to its inadvertent omission of certain previously agreed upon and material instructions as to speed (M. S. A. § 169.14, subds. 1, 2, 3), had precluded themselves from asserting such omission as ground for a new trial. At the close of the charge, the court inquired of counsel if there had been any omissions or errors that should be supplied or corrected. Plaintiffs' counsel remained silent until after the jury had retired, and then for the first time took exception to the charge. It was his duty to speak before it was too late for the court to correct its mistake or inadvertent omission. State v. Van Guilder, 199 Minn. 214, 271 N.W. 473. The right to call the court's attention to its inadvertent omission or error in the charge, or to take exception thereto, involves a corresponding duty to exercise such right seasonably before the jury has retired. While M. S. A. § 547.03, subd. 1, does not require exceptions to instructions to be taken orally and permits them to be taken in the notice of motion for a new trial, it does not go to the length of permitting ambiguous or verbally inaccurate instructions to be so challenged. Donea v. Massachusetts Mut. Life Ins. Co., 220 Minn. 204, 215, 19 N.W.2d 377, 383. M.S.A. § 547.03, subd. 2, which provides that "any adverse ruling * * * or instruction of the court * * * shall be deemed excepted to for all purposes," was not intended to obviate the necessity of seasonably calling the court's attention to inadvertent omissions or errors in the charge, but merely to eliminate the need for taking an exception where the court has acted adversely after its attention has been directed to the alleged error. See 31 Minn. L. Rev. 736. In Applebee v. Perry, 87 Minn. 242, 91 N.W. 893, 894, we held:

"It is well settled in our state that the omission of material instructions, or indefiniteness or insufficiency or even obscurity, in the charge of the court, is no ground for error or for a new trial, when the attention of the court was not at the time specifically called to the defect, and further and more definite instructions asked for."

See Dehen v. Berning, 198 Minn. 522, 270 N.W. 602; Doody v. St. Paul City R. Co., 198 Minn. 573, 270 N.W. 583. The order granting a new trial is not sustainable on the ground of inadvertent omissions as specified by the trial court.

4. Where, however, a motion for a new trial is granted solely for errors of law and the errors specified by the trial court are inadequate, the order granting the motion may be sustained by showing other errors than those specified if such other errors are prejudicial and were properly raised.² Plaintiffs in their motions assigned other errors, and one of these related to plaintiffs' request that the jury be instructed as to the rights and duties of pedestrians at crosswalks in accordance with the applicable portions of M.S.A. § 169.21. The denial of this request was prejudicial error. The record shows that the boy was struck while crossing the street at the intersection crosswalk. The evidence would permit a finding that the Weinberg car approached the intersection at about 25 to 30 miles per hour, without appreciably reducing...