Trudeau v. Sina Contracting Co.

• Decision Date: 22 January 1954
• Docket Number: Nos. 36116--36118,s. 36116--36118
• Citation: 62 N.W.2d 492,241 Minn. 79
• Parties: TRUDEAU et al. v. SINA CONTRACTING CO., Inc. et al.
• Court: Minnesota Supreme Court

Page 492

62 N.W.2d 492

241 Minn. 79

TRUDEAU et al. v. SINA CONTRACTING CO., Inc. et al.

Nos. 36116--36118.

Supreme Court of Minnesota.

Jan. 22, 1954.

Syllabus by the Court.

1. Where an error in instructions with respect to fundamental law or controlling principle is assigned in an alternative motion for a new trial, the question of the correctness of the instruction in a given case presents a proper matter for review on appeal.

2. Failure of automobile brakes which have previously functioned properly does not necessarily render owner or operator guilty of negligence where said brakes had been repaired and reconditioned two weeks before an emergency presented itself and said owner and operator had no knowledge of defective condition, nor is it negligence as a matter of law for a defendant under such circumstances to pump the foot brake and attempt to shift into a lower gear rather than attempt to apply the emergency brake on approaching an intersection. One suddenly confronted by a peril, through no fault of his own, who in the attempt to escape does not choose the best or safest way, should not be held negligent because of such choice unless it was so hazardous that the ordinarily prudent person would not have made the same choice under similar conditions. Johnson v. Townsend, 195 Minn. 107, 261 N.W. 859.

Carlson & Wiblishauser, St. Paul, for appellants.

Tracy & Sinclair, St. Paul, Carroll & Thorson, Minneapolis, Thomas Burke, St. Paul, for respondents.

NELSON, Justice.

Plaintiffs brought separate actions to recover damages for injuries received as the result of an intersection collision between an automobile owned and driven by plaintiff Alfred E. Trudeau, in which plaintiff Jean N. Trudeau, his wife, and plaintiff Elizabeth O. Trudeau, his mother, were passengers, and a two-ton Ford truck owned by defendant Sina Contracting Company, Inc., and driven by defendant John P. Sinna. The three cases were consolidated for trial below and are now submitted as a single case on appeal. The issues presented by the pleadings and the evidence was submitted to a jury which returned a verdict in favor of the defendants in each case. The plaintiffs each moved for judgment notwithstanding the verdict or for a new trial. The trial court denied the motions and the plaintiffs separately appealed.

The collision occurred on May 25, 1951, at approximately 2 p.m. at the intersection of U.S. arterial highway No. 10, which runs in a general northerly and southerly direction, and state highway No. 100, which runs in a general easterly and westerly direction and becomes a county road east of the intersection. The plaintiff Alfred E. Trudeau was driving his 1949 DeSoto four-door sedan in a northerly direction upon U.S. highway No. 10 approaching the intersection, and the defendant John P. Sinna was driving the 1948 Ford two-ton truck in a westerly direction upon the county road and approaching its intersection with U.S. highway No. 10. The testimony on the part of the plaintiffs indicates that the truck was first seen by them when they were from 100 to 150 feet south of the point of collision, which occurred in the northeast quadrant of the intersection. Defendant Sinna testified that he saw plaintiffs' car when he was about 200 feet east or back from the stop sign on the county road. The stop sign was located about 50 feet east from the east edge of the intersection, and there was a sign warning of an impending stop about 300 feet farther east.

Defendants' truck was equipped with foot brakes and a hand or emergency brake. Defendant Sinna testified that, when he came to within 105 to 110 feet east of the point of impact, he started to apply his foot brakes but found that they went to the floor. Although he pumped his foot brake from 15 to 25 times, the brakes would not operate and he was unable to check his speed of 20 to 25 miles per hour as he went into the intersection. Sinna stated that he attempted to shift into a lower gear in order to retard his speed, also without success. He testified that he made no attempt to apply his emergency brake but that he believed it would have taken him 150 feet to stop the truck at that speed using that brake. Testimony shows that the brake system had been repaired and reconditioned approximately two weeks before the accident.

It is undisputed that the truck failed to come to a stop before entering the arterial highway, U.S. No. 10, and that the front of the Trudeau automobile collided with the left rear of the truck. The result of the impact was to swing the Trudeau car around so that it faced south and to cause the truck to roll over into a field 76 feet northwest of the point of collision.

Trudeau testified that he became aware of the truck when he was from 100 to 150 feet south of the point of impact, at which time the truck was 150 to 200 feet from the point of impact. He testified that he began to apply his foot brake when his automobile was 100 feet south of the point of impact and traveling from 40 to 50 miles per hour, and was able to slow his speed to about 25 to 30 miles per hour before the impact occurred. He also testified that defendants' truck entered the intersection at a speed of 40 to 50 miles per hour, that highway No. 10 was in a 50-mile-per-hour speed zone at that point, and that he sounded his horn and turned his car slightly to the right before reaching the intersection; but neither party was able to avoid the collision.

Resolving all conflicts in the evidence in favor of the prevailing parties below, the facts appear to be as hereinbefore stated.

The plaintiffs assign as errors (1) the submission of the emergency rule to the jury at the request of the defendants; (2) the denial of plaintiffs' motions for a directed verdict in each case on the ground that defendants were negligent as a matter of law; (3) the denial by the court of the alternative motions for judgment notwithstanding the verdict or for a new trial in each case; and (4) that the verdicts were not justified by the evidence and were contrary to law.

1. Defendants argue that the record shows no exception taken to the charge when the court asked: 'Do you have any objections or suggestions that you wish to call to the Court's attention?' and that therefore plaintiff cannot argue on appeal that the submission of the emergency rule to the jury was reversible error. The trial court stated in its memorandum that:

'Plaintiffs' attorneys objected and excepted to the Court's submitting the question of an emergency and of the contributory negligence of the driver of the automobile occupied by plaintiffs. Otherwise they agreed to the charge as given. I do not understand that they have abandoned either of these objections.'

However, Rule 51 of the Rules of Civil Procedure in part provides:

'* * * No party may assign as error unintentional misstatements and verbal errors, or omissions in the charge, unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objections. An error in the instructions with respect to fundamental law or controlling principle may be assigned in a motion for a new trial though it was not otherwise called to the attention of the court.'

In view of the court's memorandum and the fact that plaintiffs made a motion for new trial in the alternative which was amended to include their objections to the submission of the emergency rule, it appears that Rule 51 was complied with and that plaintiffs have the right to assign as error the court's giving defendants the benefit of the emergency rule. For the same reasons, the submission by the court of the rules applicable to contributory negligence in respect to the acts and conduct of plaintiff Alfred Trudeau was also properly included under plaintiff's assignments.

2. We are unable to agree with plaintiffs' contention that the submission of the emergency rule to the jury in these cases was error. It has been intimated that the doctrine is limited to cases where plaintiff relies on it to relieve him from the charge of contributory negligence and that it can only be invoked by a plaintiff under such a set of facts, but that is not the generally accepted view of its application. We hold to the view that the doctrine may be equally applicable under proper circumstances when the question is one of negligence on the part of a defendant. 65 C.J.S., Negligence, § 17; Zickrick v. Strathern, 211 Minn. 329, 1 N.W.2d 134; Dahlstrom v. Hurtig, 209 Minn. 72, 295 N.W. 508; Eystad v. Stambaugh, 203 Minn. 392, 281 N.W. 526. The existence of an emergency arising without fault on the part of persons sought to be charged with negligence is sufficient to warrant the application of the emergency rule, although the person injured was not in any way responsible for, or connected with, the creation of the emergency. In order to invoke the emergency doctrine to protect a defendant from liability, it is not necessary that the emergency arise through some fault of the plaintiff, but nevertheless, before the doctrine of acts in an emergency can apply, there must be an emergency of some kind which the actor could not reasonably have anticipated. 65 C.J.S., Negligence, § 17.

The so-called emergency rule is but a special application of the general standard of reasonable care. When given, it requires a jury to consider the fact of sudden peril as a circumstance in determining the reasonableness of a person's response thereto. The rule can only apply if it has first been determined that there existed a real peril and that the negligence of the party seeking to invoke it was not a contributing cause. Prosser, Torts, § 37; Restatement, Torts, § 296. ¹

The trial court in its charge submitted the applicable statutes from the traffic code including M.S.A. § 169.67 as to brake requirements and § 169.96 which sets out the prima facie rule, stating that in case of a violation of any...