Zylka v. Leikvoll

• Citation: 144 N.W.2d 358,274 Minn. 435
• Decision Date: 22 July 1966
• Docket Number: Nos. 39460,s. 39460
• Parties: Lawrence ZYLKA, by Celestine Zylka, his father and natural guardian, and Celestine Zylka, Respondents, v. Clarence LEIKVOLL, dba Clar's Texaco, Appellant, Albert S. Traphagan, Appellant, Rodney E. Bounds, Appellant, Kenneth P. Cech, and Lawrence E. Motl, Respondents, Rodney E. Bounds, cross-complainant, Respondent. to 39462.
• Court: Supreme Court of Minnesota (US)

Page 358

144 N.W.2d 358

274 Minn. 435

Lawrence ZYLKA, by Celestine Zylka, his father and natural guardian, and Celestine Zylka, Respondents, v. Clarence LEIKVOLL, dba Clar's Texaco, Appellant, Albert S. Traphagan, Appellant, Rodney E. Bounds, Appellant, Kenneth P. Cech, and Lawrence E. Motl, Respondents,

Rodney E. Bounds, cross-complainant, Respondent.

Nos. 39460 to 39462.

Supreme Court of Minnesota.

July 22, 1966.

Syllabus by the Court

1. Where defendant, traveling about 50 miles per hour in the northbound lane of a four-lane, divided highway on a cold night on clear dry pavement, approached the scene of a two-car collision (which occurred about 4 minutes earlier) and struck plaintiff, a pedestrian crossing the highway, and collided with one of the two vehicles disabled by the accident of the first collision, evidence supported jury's finding that defendant's failure to see several warning signals and to properly discern the import of a flashing red dome light atop a wrecker situated in the crossover connecting the northbound and southbound lanes did not constitute a superseding cause of plaintiff's injuries so as to insulate from liability the negligence of those participating in creating hazards resulting from the first collision.

2. Under the law of the case, the duty imposed upon one who, without negligence, participates in creating a dangerous condition is to exercise reasonable care to remove or warn others of the hazard and not that of a volunteer. Thus evidence supported jury finding that defendant operator of a wrecker, who participated unsuccessfully in efforts to start a vehicle by pushing it upon the highway, was negligent in failing adequately to warn others or to remove the hazard created by an accident in which he was a nonnegligent participant.

3. Failure to object at trial to alleged errors in court's jury instructions constitutes waiver of right to assert such errors on appeal.

4. Assuming trial court erred in denying defendant opportunity to impeach his own witness with a prior inconsistent written statement, there was no prejudice where statement would add nothing to the jury's understanding of the case.

5. Evidence supports a jury finding that defendant Bounds was negligent in failing adequately to remove or warn others of a hazard he negligently participated in creating and that plaintiff was not contributorily negligent.

Quinlivan, Quinlivan & Williams, St. Cloud, for Leikvoll.

Carroll, Cronan, Roth & Austin, Minneapolis, for Traphagan.

Rufer, Blatti, Hefte & Pemberton, Fergus Falls, Peltoniemi & Satterlee, Wadena, for Bounds.

Rosenmeier & Simonett, Little Falls, for Zylka.

James C. Wackerbarth, Minneapolis, for Cech and Motl.

OPINION

ROGOSHESKE, Justice.

Appeals from an order denying defendants' alternative motions for judgment notwithstanding answers to interrogatories or for a new trial.

The action arises out of a series of events occurring on Highway No. 10 at a point about a mile south of Little Falls at approximately 6 p.m., December 15, 1961. At that point, Highway No. 10 is a blacktop, four-lane highway running north-south and having two northbound and two southbound lanes that are separated by a wide, unsurfaced divider strip. The shoulders on each edge of the northbound lanes are 8 feet wide. A blacktop crossover, 52 feet wide, traverses the divider strip and connects the north and southbound lanes. It is located slightly north of the North Star gas station, which was then being operated by plaintiff's uncle, Melvin Zylka.

At the time of the collisions hereafter described, it was dark and about 30 degrees below zero. The roads were clear and dry. Sometime between 5 and 6 p.m., defendant Clarence Leikvoll, doing business as Clar's Texaco Station located in the city of Little Falls, was engaged in efforts to start a Pontiac automobile owned by his customer, defendant Albert S. Traphagan. With Traphagan steering, the Pontiac was pushed by a wrecker owned and operated by Leikvoll. After pushing it within the city of Little Falls and then south on Highway No. 10 beyond the city limits without starting the engine, the drivers decided to return to the city.

As the vehicles reached the crossover near the North Star gas station, they turned east into the crossover and stopped, preparatory to continuing to push the pontiac upon the northbound lanes to Little Falls. A yield-right-of-way sign faced the two vehicles as they waited to enter the northbound lanes. There is dispute as to whether Traphagan's vehicle extended into the northbound lanes while stopped, but it is undisputed that the position of the Pontiac was the result of the normal braking action of Traphagan, who controlled his stop without being pushed ahead 'against his brakes' by Leikvoll, and that Traphagan was not pushed 'a little extra' by Leikvoll prior to the breaking of contact between the wrecker and the Pontiac.

As they waited for traffic to clear (there was a string of seven or eight northbound vehicles approaching for which they decided to wait as traffic was 'too close to take a car out into it'), Traphagan claims to have gotten out of his Pontiac to look at his headlights. He testified they were on. He returned to his car, and as he sat down and was settling himself he was struck in the right front fender by defendant Rodney E. Bounds, who was driving a white Ford and was traveling north toward Little Falls on Highway No. 10. At no time prior to this collision did Liekvoll have lighted the warning light affixed to the top of the cab of his wrecker.

Bounds testified that prior to the collision he had been traveling 55 miles per hour in the left lane of the two northbound lanes of the highway. He had passed a semitruck driven by witness Vern Rodekuhr, and after glancing into his rearview mirror, was preparing to 'pull back into (his) right-hand lane' when the impact occurred. He further testified that he covered 200 or possibly 300 feet while looking in the rearview mirror. When he looked forward he saw the Traphagan vehicle 50 to 75 feet ahead of him. He did not see any lights on it. All testimony indicates that Bounds was 'driving properly, spaced toward the center of the traffic lane.' Bounds thought Traphagan's vehicle was blocking at least half of his lane of travel.

The collision spun both vehicles around counterclockwise. Traphagan's Pontiac came to rest near the north edge of the crossover facing west with it rear end protruding some feet onto the main traveled portion of the west lane of the northbound lanes and its front end partially in the ditch at the edge of the shoulder. Bounds' Ford lay astride the centerline of the northbound lanes facing southwest, with its right front approximately 15 feet north of the Pontiac and about 3 feet from the west edge of the blacktop. There is testimony that the lights on both vehicles were off.

After their vehicles came to rest, both Bounds and Traphagan got out of their cars and started to direct oncoming traffic around the east side of the Bounds car where there was passage upon about 5 feet of the east lane and the 8-foot shoulder. After about 1 to 3 minutes, Bounds felt 'woozy.' He felt he was going to faint and testified he knew he had to 'sit down someplace mighty quick,' so he got into Traphagan's Pontiac. Traphagan claims he saw Bounds in what appeared to be a 'shock state.' Traphagan testified Bounds complained of being cold and therefore he assisted him into the Pontiac. Bounds remained in that position until the second collision. Traphagan continued to stand near the left rear of the Bounds Ford on the centerline, directing cars without a flashlight or flare, although Leikvoll had both available in his wrecker.

Leikvoll, after investigating the physical condition of Traphagan and Bounds, retruned to his wrecker, picked up his flashlight, and crossed the highway to the east side where the semitrailer driven by Rodekuhr was stopped near the north driveway entrance to the North Star gas station. Leikvoll testified that he requested the driver to call the highway patrol. Just them a car driven by Loren Simmons, an acquaintance of Leikvoll, stopped and parked in the north station drive. Simmons told Leikvoll he had a fusee or flare in the trunk and that he would get it for him.

Leikvoll then crossed back over to his wrecker (still parked in the crossover) and put on the wrecker's three flashing red lights. These included the red dome blinker light on top of his cab, 3 to 4 inches in diameter and 5 inches high, and two falshing red lights, 6 to 7 inches in diameter, mounted on each side of the cab about 4 feet ahead of the rear dual wheels and 5 feet off the ground. The red top blinker light was 7 feet off the ground. He also turned on the amber clearance lights and the red rear parking lights.

Thereafter Leikvoll returned to Simmons, received the now-lights flare from himAnd during a gap in northbound traffic, proceeded south along the east shoulder of the highway carrying the flare and his lighted flashlight. It is undisputed that Leikvoll used the flare given to him by Simmons. The flare which he was carrying in his own wrecker was not put to use. As Leikvoll proceeded south, he flagged down approaching traffic. Approximately 400 feet south of the accident scene, he came upon a pickup truck parked on the east shoulder with its clearance lights flashing and its parking lights on. Melvin Zylka, uncle of plaintiff, Lawrence Zylka, had driven the pickup truck out of his station and had parked it on the shoulder after the accident. Leikvoll stopped and stationed himself 10 feet north of the pickup at a point 400 feet south of the accident scene. He testified it was his intention to place the flare on the blacktop and cross to the west shoulder to flag traffic with his flashlight.

Leikvoll, then standing about 1 foot east of the blacktop, saw a car approaching in the east lane close to him. He signaled it with his flare and it...