Johnston v. Jordan , 193 Minn. 298 ( 1935 )

In my opinion plaintiff was negligent as a matter of law, and her negligence contributed to her injury. She approached Grand avenue at a speed of 15 to 20 miles per hour; her view to the right for nearly a block was unobstructed so that she might at a glance see that no traffic from that direction menaced her safety or might claim right of way. It was a bright, clear day, and the hour was one in which traffic was light. There were no parked or moving cars to distract her attention. She knew that the Grand avenue intersection was dangerous, and she says she looked to her left as she was about 25 feet from the eastern curb of the avenue. The city engineer's plat shows conclusively that at that point she could see past the grocery store and 260 feet south on the avenue. The photographs show that there was no obstruction to her vision except a telephone pole near the intersection and a tree with high branches some 60 feet farther on. Neither one of these objects in any way could have concealed defendants' car. The highest estimate of its speed was 40 miles per hour. Even at a possible 45 or 50 miles an hour it must have been in plain sight when she was at the point where she said she looked or anywhere near that point. Either she did not look or she ignored the presence of the car She says she did not see it. She then glanced to the right and then back to the front without again looking toward her left. Then when she was within ten feet of defendants' car she heard it, "looked up," and saw it in her path. She veered somewhat to the left but struck defendants' car in the rear of its right rear wheel. Having claimed to look but not having seen defendants' car, which was plainly visible, she is in the same position from a legal standpoint that she would be in if she had not looked at all. As said in Chandler v. Buchanan, 173 Minn. 31,35, 216 N.W. 254, 255:

"A verdict cannot be permitted to rest upon testimony of a party having good eyesight that he did not see a moving automobile then in plain sight at a place to which his vision is specially directed."

That is just what the majority opinion permits.

If it may be ordinary care to drive into such an intersection without ever looking to the left for approaching traffic, then this verdict may rightfully stand, but not otherwise. If ordinary care permits such conduct, the doctrine of contributory negligence has been judicially abolished. If ordinary care requires a look to the left under such circumstances, she either failed to look or ignored a plainly visible object. She is not in the position of a person who has seen the approaching car and advances on the assumption that its driver will moderate his speed and yield the right of way. She did not see a plainly visible vehicle approaching at high speed, and she voluntarily entered the danger zone of the intersection [176 Minn. 302] "unmindful of and oblivious to the impending peril" and exposed herself to the hazard of a collision. Sorenson v. Sanderson, 176 Minn. 299,223 N.W. 145, is directly in point, even to the plaintiff having the right of way. In that case the plaintiff was the first into the intersection, making a left turn after giving the required signal. This gave him the statutory right of way. As in the case at bar, the paths of the two cars crossed. Plaintiff in each case had the statutory right of way. In each case plaintiff continued on into the intersection of the paths, and a collision occurred as was to be expected if neither car reduced speed. In each case the plaintiff claimed to have looked and not to have seen what was obviously visible and continued to act as if the perfectly visible object, which it was his duty to see, was not there. The cases are parallel in principle and cannot be distinguished by the mere fact that the cars were crossing each other's paths at a different angle in the Sorenson case from that in the case at bar. This court unanimously held that plaintiff in the Sorenson case was negligent.

The majority give some weight to the fact that at some other intersections Twenty-eighth street is protected by stop signs. It was not so protected at Grand avenue. Even if it were so protected, plaintiff could not in the exercise of ordinary care blindly enter the intersection without looking for cross traffic. Contrary to the view apparently held by many of the young drivers of the cities, cars do not enter such intersections from cross streets at their peril. Having stopped for the sign, their legal rights (usually ignored) are the same as at other intersections. Johnston v. Selfe, 190 Minn. 269,251 N.W. 525; Bell v. Pickett, 178 Minn. 540, 227 N.W. 854,855. In the case last cited this court in speaking of cross traffic entering a protected street, said [178 Minn. 544]:

"If he does stop and thereafter exercises due care in entering the through street, he then has the benefit of the right of way rule."

Of course the prima facie presumption of unlawful speed would be more easily overcome in favor of the arterial traffic at such intersections, but the arterial traffic must proceed with due regard to the rights of cross traffic to enter or cross after having complied with the stop sign. One may not, in ordinary care, even if on the arterial street, blindly and without looking, go blundering into such intersection. In the same case the trial court charged, with this court's approval, as follows [178 Minn. 543]:

"2. The law of the road is not unyielding. It does not invariably give the vehicle to the right of the intersection the preference. Regard must be had to surrounding circumstances, and in connection with state and municipal traffic regulations the drivers of vehicles upon tile public streets always must be mindful of the abiding rule requiring the exercise of due care to avoid collision.

"3. The statute does not warrant drivers in taking close chances. If the driver of an automobile approaching a street intersection sees a vehicle approaching at a fast rate of speed so that there is reasonable danger of a collision, if both proceed, then it is his duty to exercise due care so as to avoid a collision."

But I am not in accord with the view that because some other intersections on Twenty-eighth street were protected by stop signs the conduct of plaintiff in not looking is in any measure excused. Here the photographs show that the stop sign was conspicuously absent. A stop sign present, she might, until observation otherwise indicated, assume that cross traffic would stop for it, but the presence of stop signs at other intersections places no burden upon public authorities to place them at every intersection. Not only the law but common observation demonstrates that such is the case. In my opinion Twenty-eighth street ceases to be "arterial" when not protected, though I do not think that point important here.