Dreyer v. Otter Tail Power Co. , 205 Minn. 286 ( 1939 )

It seems to me that the evidence in this case presents a question of fact as to plaintiff's contributory negligence. Defendant's gross negligence is conceded. Its counsel in appellant's brief say:

"Waiving analyses of other cases and all technicalities aside, candid and dispassionate consideration of this record shows simply that both plaintiff and defendant were grossly negligent."

The collision in question occurred at the intersection of two country highways. The cars must have reached the intersection at approximately the same time for they collided within its boundaries. In such event, plaintiff had the statutory right of way. 3 Mason Minn. St. 1938 Supp. § 2720-196. He was a stranger in the community and not familiar with the crossroads. While it is true that he passed the intersection about two hours before, it was from the opposite direction. The day was misty and foggy. The windshield wiper kept the shield clear, but it was necessary for plaintiff to keep the glass in the front doors transparent by the use of his hand. The road on which plaintiff was traveling was covered with loose gravel. The condition on each side of the highway may best be described by quoting from plaintiff's testimony:

Q. "Tell the jury as you went along what you saw as you got near when it finally turned out this intersection was. Tell us about everything there.

A. "On the south side of the road there was a row of trees planted clear up to the intersection. The ground shoots from the roots of the trees were growing up, and there were high weeds in between the trees. On the north side there were weeds along the roadside and also from the intersection, and north along the fence there were high weeds.

Q. "How high would you say those weeds and that obstruction were on either side?

A. "About five feet.

Q. "About five feet?

A. "Yes, sir.

Q. "So that as you came along there will you tell the jury whether you did or did not see any intersection?

A. "I did not see any intersection.

Q. "And will you tell us whether or not there was anything about the ground there just before the intersection?

A. "What do you mean?

Q. "That interfered with your view of the intersection?

A. "Well, the ground, the side of the road was so that I could not see the intersection until I was right in it.

Q. "So that until you actually got up to the point where you were entering the intersection did you know anything about that at all?

A. "No.

Mr. Field: "Objected to as leading and suggestive. Just a minute, Rev. Dreyer, and let the court rule on these things.

The Court: "He may answer."

To which ruling of the court the defendant, by its counsel, then and there duly excepted.

Mr. Dell: "What was your answer?

A. "No.

Q. "And when you entered the intersection where were you traveling in the road?

A. "In the center of the road.

Q. "Why were you traveling there?

A. "Because of the loose gravel on the sides."

Under the circumstances related and in the light of our former decisions, I do not see how we can hold, as a matter of law, that plaintiff was guilty of contributory negligence.

If a party is not entitled to a directed verdict on a trial, he is not entitled to judgment non obstante. Ritko v. Grove,102 Minn. 312, 316, 113 N.W. 629; Koski v. C. M. St. P. Ry. Co. 116 Minn. 137, 133 N.W. 790; O'Halloran v. C. B. Q. R. Co. 156 Minn. 471, 195 N.W. 144. A verdict may be directed only in those unequivocal cases where it clearly appears to the court, on the trial, that it would be its manifest duty to set aside a contrary verdict as not justified by the evidence or as contrary to the law applicable to the case. 6 Dunnell, Minn. Dig. (2 ed. Supps.) § 9764; Dawson v. Helmes, 30 Minn. 107,14 N.W. 462; Baxter v. Brandenburg, 137 Minn. 259,163 N.W. 516; Thompson v. Peterson, 122 Minn. 228, 142 N.W. 307.

A motion for a directed verdict admits for the purposes of the motion the credibility of the evidence for the adverse party and every inference which may fairly be drawn from such evidence. 6 Dunnell, Minn. Dig. (2 ed. Supps.) § 9764; Stauff v. Bingenheimer, 94 Minn. 309, 102 N.W. 694; Knudson v. G. N. Ry. Co. 114 Minn. 244, 130 N.W. 994. On such motion the evidence must be viewed in its aspects most favorable to the verdict. Timmerman v. Marsh, 199 Minn. 376, 271 N.W. 697.

In determining that negligence or contributory negligence exists as a matter of law, courts frequently overlook the essential nature of negligence. It is the doing of something which an ordinarily prudent person would not do, or the failure to do something which an ordinarily prudent person would do, under like or similar circumstances. 4 Dunnell, Minn. Dig. (2 ed.) § 6969, and cases cited in footnote 70. The test, therefore, is not what an exceptionally careful driver would do or what a reckless driver would do or what a learned jurist would do. The test is what an ordinarily prudent person would do in the situation presented. Who, then, is in a better position to know what an ordinarily prudent person would do under circumstances such as those here involved than 12 jurors selected from different walks of life in the unit of government where the case is tried. It seems to me, therefore, that a jury whose members have had an opportunity in the everyday affairs of life to witness the acts of prudent, as well as of imprudent, persons is best qualified to decide what a prudent person would do under given circumstances.

For the reasons stated, I dissent.

ON MOTION BY APPELLANT TO SUBJECT INSURANCE COMPANY AND RESPONDENT'S ATTORNEYS TO COSTS INCURRED IN SUPREME COURT.

On June 23, 1939, the following opinion was filed: