Svercl v. Jamison

• Decision Date: 14 March 1958
• Docket Number: No. 37157,37157
• Citation: 88 N.W.2d 839,252 Minn. 8
• Parties: Frank SVERCL, Appellant, v. Earl JAMISON, Respondent.
• Court: Minnesota Supreme Court

Page 839

88 N.W.2d 839

252 Minn. 8

Frank SVERCL, Appellant, v. Earl JAMISON, Respondent.

No. 37157.

Supreme Court of Minnesota.

March 14, 1958.

Syllabus by the Court.

Whether a driver of an automobile was negligent in driving at a speed of slightly less than 30 miles per hour around a curve covered with glare ice, having knowledge of the icy condition of the road, presents a question for the jury.

James Harper, Duluth, Hugo A. Laine, Cloquet, for appellant.

Lipschultz, Altman, Geraghty & Mulally, James H. Geraghty and Roger R. Lenzmeier, St. Paul, for respondent.

KNUTSON, Justice.

This is an appeal from a judgment entered pursuant to an order of the trial court granting judgment notwithstanding the verdict after a decision in favor of plaintiff.

The facts are not seriously in dispute. Plaintiff and defendant are close friends. Both live at Sandstone, Minnesota. A day or two prior to November 28, 1954, they went on a week-end deer-hunting trip together to a camp north of Grand Rapids, Minnesota. They were accompanied by defendant's 22-year-old son, Earl. In making the trip they used defendant's DeSoto automobile, which was practically new and in good working condition. On the return trip on Sunday, defendant was driving. Defendant's son was seated in the middle of the front seat, and plaintiff sat on the right side of the front seat. A slight snow was falling north of Grand Rapids, but the weather cleared as they proceeded southward. They traveled on Trunk Highway No. 169 for some distance, but at McGarth, Minnesota, they entered and proceeded easterly on Trunk Highway No. 66, which had a graveled surface. Driving conditions were good, and defendant drove at a speed of about 50 miles per hour until they approached the Pine Lake area. There they encountered a series of S-curves. The road surface on these curves was covered with ice, a condition which the parties became aware of on their trip to Grand Rapids. As they approached these curves, defendant reduced his speed to about 30 miles per hour and had no difficulty in controlling the car until he reached the last curve around the lake. That curve was slightly sharper than the others and was covered with glare ice. He reduced his speed to slightly less than 30 miles per hour, and, when he encountered the ice on this curve, he slid off the road into the ditch, and plaintiff sustained the injuries for which he now sues to recover.

As has been stated, plaintiff was seated in the front seat. He testified that he observed the conditions of the road at all times and that he knew the icy condition of the curves in the Pine Lake area. He stated that he felt perfectly safe with defendant driving and that he noticed nothing which caused him to feel otherwise when defendant was negotiating these curves.

The jury returned a verdict in favor of plaintiff, and, on motion, the trial court set aside the verdict and granted judgment notwithstanding the verdict. It was the opinion of the trial court that the evidence, taken most favorably to plaintiff, was insufficient to show any negligent conduct on defendant's part in the operation of the automobile.

The only question for our determination is whether the evidence is such that a finding of negligence can be sustained.

We have frequently held that evidence of skidding on a slippery road, standing alone, is not enough to establish negligence. ¹ To hold otherwise would be to apply the doctrine of res ipsa loquitur in a class of cases where it obviously does not belong. However, in many of the cases of this type, the manner of driving prior to skidding and the control of the car both before and after skidding present a situation where an inference of negligence is permissible. Here, defendant was aware of the fact that there were icy spots on the road and in particular around these curves. He had encountered such ice on the trip to Grand Rapids. He found ice on the curves that he previously had been able to negotiate. In that respect the case differs from Johnson v. Bosch, 178 Minn. 363, 227 N.W. 181, which is relied upon in part by the trial court in setting aside the verdict of the jury. In that case the driver of the automobile lost control when it hit some loose gravel on the road. We said (178 Minn. 365, 227 N.W. 182):

'* * * It happened that the gravel where the cars met was loose near the shoulder of the roadway. However, there is nothing to show that this condition could be detected by either plaintiff or the driver before the car struck it.'

In the case now before us, defendant knew that he was apt to encounter icy spots, particularly around these curves. He could see the icy spots on the road.

The decision in White v. Cochrane, 189 Minn. 300, 249 N.W. 328, which was decided by a divided court, three justices dissenting, was based mainly on the fact that plaintiff had absolved defendant of any negligence by her testimony or that she had assumed the risk of riding with defendant. As far as the testimony of plaintiff in this case is concerned, much the same probably could be said, but we do not believe that it follows, as a matter of law, that, merely because plaintiff felt no apprehension of danger, the jury could not find defendant negligent. After all, the duty of operating the car safely rests on the driver.

Nor is Thompson v. Peterson, 235 Minn. 142, 50 N.W.2d 53, of much help here. In that case a highway truck, in the process of sanding a steeply banked curve covered with glare ice, was traveling at a very slow rate of speed and it slid down the curve and obstructed the path of plaintiff's truck, which was approaching the curve from the opposite direction. Plaintiff was unable to stop. He entered the area knowing that the road was covered with glare ice and that defendant's truck was on...