Thelen v. Spilman

• Decision Date: 22 November 1957
• Docket Number: Nos. 37138,37139,s. 37138
• Citation: 77 A.L.R.2d 1315,86 N.W.2d 700,251 Minn. 89
• Parties: , 77 A.L.R.2d 1315 Marle THELEN and E. J. Thelen, Respondents, v. Peter A. SPILMAN, Respondent, Dakota Transfer and Storage Company and Milt E. Reiten, Appellants.
• Court: Minnesota Supreme Court

Page 700

86 N.W.2d 700

251 Minn. 89, 77 A.L.R.2d 1315

Marle THELEN and E. J. Thelen, Respondents, v. Peter A. SPILMAN, Respondent Dakota Transfer and Storage Company and Milt E. Reiten Appellants.

Nos. 37138, 37139.

Supreme Court of Minnesota.

Nov. 22, 1957.

Syllabus by the Court.

1. Simon v. Carroll, 241 Minn. 211, 62 N.W.2d 822, distinguished.

2. While usage and custom cannot change or abrogate norms of reasonable care prescribed by statute, it is to be borne in mind that where a statute makes a violation of prescribed standards only evidence of negligence, it contemplates that other factors relevant to the question of negligence may be considered.

3. Common custom under similar circumstances with respect to an act, alleged to constitute contributory negligence and declared by statute to be prima facie evidence of negligence, is relevant to determination of the question whether such act constitutes negligence as a matter of fact.

4. An act or omission of a second tort feasor (or actor), as a matter of law, cannot constitute an efficient intervening cause which breaks the chain of causation between the negligence of the original tort-feasor and the resulting accident or collision, when such act or omission occurs so near in time to the happening of the accident or collision that it cannot possibly, in the remaining time interval, have found expression either to stop or break the natural sequence and progression of the original tort feasor's negligence as a proximate cause.

5. Whether plaintiff's conduct after entering the passing lane was negligent and constituted an efficient, superseding, and intervening act of causation was a question of fact for the jury.

6. A driver who, though under no legal duty to do so, voluntarily undertakes to signal a following driver that it is safe to pass is liable in damages for all reasonably foreseeable consequences if in giving the signal he does not exercise reasonable care for the safety of others.

7. The longstanding rule that a litigant may not passively consent to the withholding of a fact issue from the jury and then, when disappointed in the verdict, obtain a new trial on the ground that it was error not to submit it has not been changed by Rule 51, Rules of Civil Procedure.

8. A new trial for prejudicial argument is granted only to prevent a miscarriage of justice and rests in the discretion of the trial judge.

Rosengren, Rufer & Blatti, Fergus Falls, Johnson & Sands, Minneapolis, for appellants.

Bradford & Kennedy, Wadena, for respondent Thelen.

Field Arvesen & Donoho, Fergus Falls, for respondent Spilman.

MATSON, Justice.

In two automobile collision cases consolidated for trial, third-party defendants appeal from judgments against them in favor of the plaintiffs, and from judgments against plaintiffs absolving the other defendant from negligence, one of which judgments also awarded damages to such other defendant against the third-party defendants.

The car collision occurred July 27, 1954, on Highway No. 10 about five miles east of Staples, Minnesota. Plaintiff E. J. Thelen (herein sometimes called Thelen), accompanied by his wife, plaintiff Marie Thelen, was driving easterly several car lengths behind a semitrailer truck operated by third-party defendant Milt E. Reiten (herein called Reiten) and owned by third-party defendant Dakota Transfer & Storage Company (herein called Dakota). About 8:30 p.m., after plaintiff had followed the Dakota truck for about a mile or a mile and a half, Reiten, who was driving with the truck lights on dim, knowing that plaintiffs probably wished to pass, blinked his marker lights as a signal for Thelen to pass his truck. It was a clear night and the road was dry, straight, and level for over a mile to the east. Thelen, relying upon Reiten's signal, turned out into the left-hand or passing lane of the 24-foot-wide highway, which was the north lane; looked momentarily to see that everything was clear; and then quickly accelerated his car whereby it was propelled forward alongside the rear end of the Dakota trailer so that it was impossible for Thelen to turn back into the right or south lane. ¹

After Reiten blinked his marker lights, he glanced in his rearview mirror and saw Thelen turn into the passing lane, and, after making this momentary rearview observation, Reiten turned his attention again to the road in front of him where, for the first time, he saw defendant Spilman's automobile approaching from the opposite direction in the north lane and at a distance of about 20 or 30 feet from his truck. In an effort to warn Thelen of Spilman's approach, Reiten immediately blinked his marker lights rapidly several times and decelerated the truck slightly, thus making it more difficult for Thelen to get back into the right-hand lane behind the Dakota unit. Almost immediately upon entering the passing lane, Thelen applied his brakes. His car skidded about 50 feet, slid sidewise for another 110 feet, collided with the left front side of Spilman's automobile, and came to rest in the ditch on the north side of the road, 39 feet from the point of impact. Mrs. Thelen did not see the oncoming Spilman car and Thelen, whose memory has been impaired by the accident, cannot remember whether he did or not.

Spilman first noticed Thelen's automobile in the north lane when he (Spilman) was approximately 140 to 150 feet east of the front of the Dakota truck. When Spilman saw the Thelen car he switched his lights from low beam to high beam, turned off the highway so that his vehicle was almost entirely on the north shoulder (which at that point was approximately 6 feet wide), and slowed down. This took but a matter of seconds. When Spilman's car had almost stopped, Thelen's vehicle collided with it. Neither of the two automobiles, both of which were demolished, collided with the Dakota truck which at all times remained in its right-hand lane. Thelen and his wife were seriously injured.

At the close of the evidence all defendants moved for directed verdicts in their favor. Reiten and Dakota also moved for a directed verdict that defendant Spilman have no contribution as against them. These motions were denied.

All issues of negligence, contributory negligence, and proximate cause as to each of the litigants were submitted to the jury on written interrogatories. Issues of damages suffered by Thelen, his wife, or by Spilman, were similarly submitted to the jury. The jury answered the interrogatories by finding that neither defendant Spilman nor plaintiff Thelen was negligent; that defendant Reiten was negligent and that his negligence was the proximate cause of the accident; that Mrs. Thelen suffered damages in the amount of $16,000; that E. J. Thelen suffered damages in the amount of $42,000; that Spilman suffered damages in the amount of $211.

Thereafter defendants Reiten and Dakota moved for judgment notwithstanding the special verdict or in the alternative for a new trial. The trial court denied the motions and then made findings and ordered the entry of the judgments from which these appeals are taken.

Issues arise as to: (1) The probative value, if any, of reliance upon common custom as justifying conduct which by statute is prima facie evidence of negligence; (2) intervening cause; (3) whether driver's gratuitous giving of passing signal to vehicle following behind may constitute negligence for failure to exercise due care for the safety of others; (4) alleged errors in jury charge; (5) alleged inconsistency and perversity in jury's answers to special interrogatories; and (6) alleged misconduct of counsel in arguing to the jury.

1. The sole connection of the third-party defendants, Reiten and Dakota, with the occurrence of the collision between the Thelen and Spilman automobiles was the act of Reiten in blinking (and time and manner in which he performed such act under the circumstances) his truck marker lights as a signal to Thelen to pass. Reiten and Dakota contend that Thelen had an absolute and nondelegable duty under M.S.A. § 169.18, subd. 5, to exercise reasonable care by making his own independent observation to ascertain if it was safe for him to enter the left lane to pass a vehicle preceding him in his own lane, and that in the exercise of that statutory duty he could not rely upon the custom of accepting the blinking of the lights of a truck preceding him in his own lane as an indication that the left lane ahead was free of traffic approaching from the opposite direction and that it was therefore safe for him to pass. Section 169.18, subd. 5, provides in part:

'No vehicle shall be driven to the left side of the center of the roadway in overtaking and passing another vehicle proceeding in the same direction unless such left side is clearly visible and is free of oncoming traffic for a sufficient distance ahead to permit such overtaking and passing to be completely made without interfering with the safe operation of any vehicle approaching from the opposite direction or any vehicle overtaken.'

Is there any merit in the contention that Thelen had no right to rely on custom as a justification for his attempt to pass the Dakota vehicle in response to Reiten's blinking of the lights? In Simon v. Carroll, 241 Minn. 211, 62 N.W.2d 822 (cited by Reiten and Dakota), we did not hold that a motorist's act of relying on custom may never be considered in determining if his violation of a prima facie statute was justified and therefore not negligent in fact. We simply held in that decision that after the 1937 enactment of § 169.18, subd. 1, (which repealed a prior statute) custom no longer had Statutory justification as an excuse for a motorist's failure to keep to his right of the road, and that despite custom, his failure to do so constituted prima facie (§ 169.96) evidence of negligence which would prevail against the violator in the absence of evidence showing a Statutory or other reasonable ground for such...