Draxten v. Brown , 197 Minn. 511 ( 1936 )

¹ Reported in 267 N.W. 498. A collision between two automobiles at a street intersection in which the plaintiff minor, a guest passenger in one of the cars was injured, resulted in these two actions against the owners and drivers of the two cars, the one for the injuries to the minor; the other by the mother for damages resulting to her for loss of the services of the minor and for expenses connected with the care and treatment of the minor for the injuries sustained. The minor, Pearl Draxten, 15 years old, a neighbor of defendant Mary J. Brown, was invited by the latter to go with her and her children to a play at the North High School of Minneapolis on the evening of December 13, 1933. Mrs. Brown's car was a Ford coach. Her daughter, the defendant Helen Brown, 26 years old, was the driver. Leaving the school building at about 10:30 p. m., they entered the car, parked near the south curb on Eighteenth avenue north, a few feet east of Girard avenue, Pearl in the rear seat with the two young sons of Mrs. Brown, and Helen and Mrs. Brown in the front seat, and drove east to cross Fremont avenue, which runs north and south, a through street. As they entered the intersection defendant Mrs. Goldie, in her Chevrolet coach, driving north on Fremont avenue, struck the Brown car between the front and rear wheels. Mrs. Brown received a fractured clavicle, and Pearl Draxten the injuries for which she claimed damages. The negligence alleged against the drivers of both cars is minutely specified such as excessive speed, failure to keep a proper lookout and proper control, failure to heed stop signs and yield the right of way. Fremont avenue being a through street, there were stop signs on either side thereof on Eighteenth avenue. The corner between the two cars was open and unobstructed so that approaching it either from the west or from the south, as did the two cars on the evening in question, the drivers could see the oncoming car of the other when either car was within 100 feet of the intersection. There was no excuse for a collision of the two cars at the time or place. It was due to the negligence of one or both of the drivers. The plaintiff Pearl, on the record, was free from any negligence that contributed to her injury. The two actions were tried together, and a verdict in each case returned against the defendants Mary J. Brown, Helen Brown, and Bessie Goldie. The Browns appeal from the orders denying their motions in the alternative for judgment notwithstanding the verdicts or a new trial.

The assignments of error challenge (a) the denial of judgmentnon obstante, (b) certain rulings on the admission of evidence, (c) a sentence in the charge, and (d) the excessiveness of the verdicts.

The defendants Brown were not entitled to directed verdicts nor to judgments notwithstanding the verdicts. There is testimony that their car did not come to a stop in obedience to the stop sign before entering Fremont avenue. And it was also a question for the jury whether or not Helen Brown used due care in ascertaining the approach and speed of the Goldie car when proceeding across the intersection.

On the trial there were X-rays introduced showing fracture of the rami of the left pubic bone of Pearl Draxten as the same appeared December 15, 1933, two days after the accident, and also as the same appeared on April 30, 1935. It was claimed on behalf of Pearl that the bone had turned so that the concave side thereof faced the outside instead of the inside of the body, thus narrowing or somewhat deforming the opening into the pelvis. As illustrating the change, like X-rays of these bones and the pelvic ring of a female two years older were received in evidence over the objection of defendants. We see no error in the ruling. These X-rays were offered and received merely to illustrate the appearance of the bones in the pelvic ring of a female who had had no fracture of any bone therein. The hospital chart of Pearl was in court and duly identified by her attending doctor, and he was interrogated as to her temperature and pulse. In so doing the court, over defendants' objection, permitted the doctor to refresh his memory from the chart. Complaint is now made that the chart was not offered in evidence. Defendants expressed no desire to have it introduced. The doctor testified that he always took the pulse when he attended her and that he did not take the temperature; but could estimate the temperature from the pulse rate of his patients. He further stated that Pearl's pulse varied from 60 to 80 beats a minute, and her temperature from 102 degrees to 97.4 degrees. No prejudice could have resulted to defendants front this testimony. But that aside, we think a hospital chart duly identified by the doctor who attends a patient as the one made by the nurse in charge may be used by the doctor to refresh his recollection just as properly as are received in evidence any records identified and kept in the business of a railroad or of any large institution requiring records of transactions as they occur. There is no parallel between the hearsay reports of police officers and hospital charts kept by an attending nurse for the information of the physician in charge of the patient. The case of Duffey v. Curtis, 193 Minn. 358, 258 N.W. 744, is not in point.

Error is assigned upon this sentence in the charge:

"Every driver is, however, required to exercise reasonable care to avoid a collision, and if it is apparent that if they both proceed that the collision is imminent, then it becomes the duty of the one on the left to yield the right of way, and if, under the facts, the situation and circumstances then existing, the drivers of the motor vehicles at that intersection, approaching and entering it, failed to observe this statutory provision, that is negligence."

This sentence is faulty and in a measure conflicts with the provision of this statute, read to the jury just before:

"The driver of any vehicle or street car traveling at an unlawful speed shall forfeit any right of way which he might otherwise have hereunder." 2 Mason Minn. St. 1927, § 2720-18.

The majority of the court consider the challenged sentence prejudicial to defendants Brown. The jury could on "this record have found that defendant Goldie, by unlawful speed, had forfeited the right of way the statute gave her over the intersection, but by the sentence objected to Goldie was restored to the right of way, and the Brown car was required to yield to her although the jury could find that that car had entered the intersection first and after having stopped in obedience to the stop sign. In other words, when the collision became imminent the Browns were charged with negligence if they failed to yield the right of way to Goldie, who, the jury could find, had forfeited it. When a collision appeared imminent it was the duty of each driver to do all within her power to avert it. The exception taken by the attorney for the Browns in these words: "and, third, charging the jury that if a collision is imminent it is the duty of the vehicle to the left to yield the right of way," sufficiently calls attention to the error of the sentence assailed on the motion for a new trial and on this appeal.

Since there must be a new trial for the error just discussed, the amounts of the verdicts need not be considered.

The orders are reversed and a new trial granted in both actions.