Wicker v. North States Const. Co.
| Decision Date | 13 March 1931 |
| Docket Number | No. 28295.,No. 28296.,28295.,28296. |
| Citation | 235 N.W. 630,183 Minn. 79 |
| Parties | WICKER et al. v. NORTH STATES CONST. CO., Inc. |
| Court | Minnesota Supreme Court |
Appeal from District Court, Hennepin County; W. W. Bardwell, Judge.
Separate actions by Nora Wicker and by her husband, George R. Wicker, against the North States Construction Company, Inc. From separate orders denying defendant's alternative motion for judgment non obstante or a new trial in each case after verdict for plaintiff, defendant appeals.
Affirmed.
Ware & Melrin, of Minneapolis, for appellant.
H. J. Edison, of Kasson, and Ohman, Fryberger & Wangaard, of Minneapolis, for respondents.
There are two cases. Plaintiffs are husband and wife, and each seeks to recover for loss arising out of injuries received while plaintiffs were riding together in the husband's automobile. The jury found for each of the plaintiffs. Defendant has appealed from separate orders denying its alternative motion for judgment non obstante or a new trial in each case.
Defendant is engaged in construction work, and builds bridges and culverts. In the summer of 1929 it constructed a monolithic culvert for Olmsted county on a public highway known as state aid road No. 5 running east and west. This highway was the ordinary good graveled highway; the graveled portion being about 20 feet wide with a 5-foot grass shoulder on each side. Concrete was used in the construction of the culvert. The pouring of the concrete was finished about June 14, 1929. It was left exposed to ripen. Defendant placed a barricade of plank across the highway on the west side of the culvert. On the east side of the culvert the road was barricaded by defendant's concrete mixer. It was placed in the middle of and crosswise of the road. It weighed 5,500 pounds. Its nearest wheels were about 3 feet from the culvert. It was about one-half taller than an automobile, 12 feet long and 6 feet wide. Traveling west, a detour road left the main highway (unknown to plaintiffs) to the right at 25 to 30 feet from the mixer. It was 12 to 14 feet wide, had been used considerably, and was in fairly good condition. There were no signs on the road to warn of it being blocked to travel.
On June 28, 1929, at about 9:30 p. m., plaintiffs, with their 13 year old son, were traveling west on highway No. 5 in a Cadillac Victoria coupe. Mr. Wicker was at the wheel. The folding or turndown seat at his right was folded. Mrs. Wicker and her child to her right were seated on the main coupé seat somewhat back of the driver's seat. They had come from Illinois, and Mr. Wicker had driven on that day about 200 miles. Their destination was only about 14 miles beyond. The night was dark. The Cadillac equipment, including the lights, was modern and was in good condition.
Mr. Wicker was driving at perhaps 30 miles per hour and was watching the road. He did not discover the mixer in the road until he was within 20 to 30 feet of it. He had his foot on the foot brake. He grabbed and was in the act of applying the emergency brake as well as the foot brake when the automobile slid in the loose gravel and struck the mixer with a violent impact, seriously injuring both plaintiffs. It was merely an interval of a split second from the time of his seeing the mixer until the crash. He called "Oh" and the crash came.
Plaintiffs were not strangers in the community where the accident occurred, though they now live at Evanston, Ill. They did not know the culvert was being constructed. They had not been on this road for about five years. Approaching the culvert from the east, the road was straight. It had a slight decline for one-half mile toward the culvert, not over 3 per cent. Mrs. Wicker did not see the obstruction until within less than 20 feet from it. She was sitting with her right arm about the boy's neck and was watching the road.
The mixer had considerable dried concrete upon it, giving it much the same color as the highway and tending to destroy its discernibility. At night the concrete was of almost the same color as the roadbed but the detour road had a different color. The testimony is that the color of the mixer was "of a neutral character such as not to make it conspicuous on the road." The day had been bright and dry. The car was so equipped with lights that the driver could throw a light high, disclosing the roadway 300 to 500 feet ahead, or a light low, usually used when meeting cars, throwing a light ahead, the main rays of which strike the ground 50 to 60 feet, but with some diffusion beyond. The lights were such that the mixer might have been seen farther away, but the fact is that neither Mr. nor Mrs. Wicker did see it until within 20 to 30 feet thereof.
1. The evidence was sufficient to justify the jury in concluding that the defendant was guilty of negligence in permitting the concrete mixer to so remain in the center of the highway without proper lights, without proper guarding or warning. Care must be commensurate with the risk involved.
Mr. Wicker's Case.
2. The claim is that Mr. Wicker was guilty of contributory negligence. It is suggested that his lamps did not meet the statutory requirement. It is the duty of the driver of an automobile in this state to have the head lamps so arranged and adjusted that they will at all times under normal atmospheric conditions and on a level road produce a driving light sufficient to render clearly discernible a person 200 feet ahead. Laws 1927, c. 412, § 50; Mason's Minn. St. § 2720-50.
The evidence would sustain a finding by the jury either way as to how the lights were being operated at the time of the accident. The driver frankly stated that he did not know whether his lights were turned up or turned down. The circumstances strongly tended to show that the full force of the lamps was thrown ahead. The verdict would indicate that the jury so found. If so, the statute was not violated.
The contention of defendant is that it appears as a matter of law that the statute was violated and therefore the driver was guilty of contributory negligence as a matter of law. Such does not follow. It is true that, when a defendant's violation of a statute proximately results in injury to one for whose benefit the statute was enacted, liability follows as a matter of law, irrespective of conduct constituting negligence. But the violation of the statute by plaintiff, who is not one for whose protection the law was enacted, is not conclusive evidence of contributory negligence, but is merely a circumstance for the consideration of the jury. Dohm v. Cardozo & Bro., 165 Minn. 193, 206 N. W. 377.
In Heiden v. Minneapolis Street Ry. Co., 154 Minn. 102, 191 N. W. 254, it was held that it was the duty of a motorman operating a street car after dark to have it under such control that, when the rays of the headlight enable him to discern a vehicle on the track, he can stop the car in time to avoid a collision. This would mean that he should be able to stop his car within the radius of his own light. But it would seem that the rule as stated there was more appropriate to the operation of a street car on rails from which it cannot turn than to an automobile driver upon a modern highway, traveling at modernly recognized reasonable speed. Some states, however, have extended the doctrine to automobile drivers, and some of the cases are cited in the Heiden Case. See, also, Spencer v. Taylor, ...
To continue reading
Request your trial