Hack v. Johnson

1 Reported in 275 N.W. 381. Action for wrongful death wherein, after verdict for defendants, plaintiff appeals from the order denying her motion for a new trial. The deceased, George J. Hack, was the driver of a motor truck and was accidentally killed shortly after three p. m. of December 20, 1935, on University avenue in Minneapolis near its intersection with Twenty-seventh avenue southeast. Before stating facts, it is well, in view of the posture in which they have been put by counsel for appellant, to say that we are not at liberty to adopt as controlling the testimony of the so-called "disinterested witnesses." The verdict was for defendants for the reason, perhaps, that the deceased was found guilty of contributory negligence, proximately contributing to his untimely death. Perforce, therefore, we must take that view of all the evidence most favorable to the defense. McIlvaine v. Delaney, 190 Minn. 401, 252 N.W. 234. University avenue at the place of the accident is a paved street, 70 feet wide between curbs. In addition to a heavy automobile *Page 11 traffic, it carries the double streetcar tracks of the main interurban line between the Twin Cities. Mr. Hack was driving a truck with "quite a fair load" of planks 18 or 20 feet in length, which projected well beyond the rear end of the rack or body of the truck. He had been proceeding westerly on University avenue and, because of some difficulty, the precise nature of which is not disclosed, had stopped his truck a short distance west of Twenty-seventh avenue. There is testimony that his right front wheel was about ten feet from the north curb, and that the truck was standing at such an angle that the "rear ends of the timbers" extended "in between the streetcar tracks." At that moment William Johnson came along, also proceeding westerly. He was driving a cattle truck owned by his wife and codefendant, Anna Johnson. Apparently seeing that he would have to turn considerably to the left to pass the Hack truck, he held his "arm out of the left window" as a warning. But, so he testifies, another car traveling rapidly "swung out around me on the left and cut in on me on the front and honked his horn when he was right aside of my cab. In order to miss him I swung back a little, and the right-hand corner of my rack caught the left corner of his timbers." The collision was fatal to Mr. Hack. The exact position of the latter just before the impact is left in some doubt. He was in the street but standing near the left side of his truck somewhere close to or in front of the cab. Where the Hack truck was parked the pavement is hard and smooth, with some downward slope to the west. There was given to the jury, on defendants' behalf, the rule of negligence, or the lack of it, applicable to action in emergency. It is possible that on that ground the jury absolved defendant William Johnson from negligence. That feature we ignore, because, if as matter of law there was no basis for a finding of contributory negligence, it was reversible error to submit that issue over plaintiff's timely objection. Vukos v. Duluth St. Ry. Co. 173 Minn. 237, 217 N.W. 125. 1. With the evidence as it is and the reasonable inferences to be drawn therefrom by triers of fact as they are, we cannot say as matter of law that Mr. Hack was not guilty of contributory negligence. *Page 12 The rule that "it is only in the clearest of cases when the facts are undisputed * * * that the question of contributory negligence becomes one of law" (Mechler v. McMahon, 180 Minn. 252,254, 230 N.W. 776, 777), while usually invoked against a defendant, is yet no respecter of persons. It operates impartially upon both parties in a case where there are allegations, with supporting evidence, of negligence and contributory negligence. Assuming that the jury found defendant William Johnson guilty of negligence, it must follow that they found the deceased guilty of contributory negligence. In our judgment, the evidence is not such as to prevent, as matter of law, a reasonable conclusion to that effect. Stopping of the Hack truck so as to obstruct, as the jury could have found that it did, nearly half of one of the busiest arteries of Twin City traffic, is not lightly to be tossed aside as an item of negligence. Assuming momentarily that the stopping of the truck was not negligence, there is the action of Mr. Hack himself, as the jury might have found it, in remaining in a place of danger. With such a load as his, there is no telling what may happen in the event of collision. But that suggestion we put aside and return to the statutory "road rule" applicable to the conduct of Mr. Hack. It was properly given to the jury in the charge and is (1 Mason Minn. St. 1927, § 2720-3): "No person shall operate or halt any vehicle upon a highway carelessly or heedlessly in disregard of the rights or safety of others or in a manner so as to endanger or be likely to endanger any person or property." We repeat that the stoppage of the Hack machine is unexplained. The best that counsel for appellant themselves can say is that it was "presumably due to motor trouble." We cannot find anything in the record which can be said to bar a reasonable conclusion by the jury that Mr. Hack, even though he found it necessary to stop, might, notwithstanding, have got his car well over to his right and close to the curb where it would have been as far out of danger as possible. In view of such considerations, for us to say that the verdict has no support in the evidence would be to usurp the function of the jury. *Page 13 Geisen v. Luce, 185 Minn. 479, 242 N.W. 8, much stressed for plaintiff, is distinguishable. We directed the entry of judgment there in favor of the defendant Ferris, whose car was shown to have been completely disabled under circumstances which prevented its removal from its position on the extreme right of the traveled way. Our conclusion was that there was no evidence of negligence on the part of Mr. Ferris, and, if there had been, there was yet no proximate connection between the position of his stalled car, with which there was no collision, and the accident to plaintiff which we considered resulted exclusively and independently from the gross negligence of the defendant Luce. See also Fleenor v. Rowley, 198 Minn. 163,269 N.W. 370. 2. There is no escape for plaintiff, from the conclusion that the issue of contributory negligence was for the jury, in the presumption that the deceased was in the exercise of due care. That presumption as such is never conclusive, but always disputable, and so to be overcome by evidence adequate for that purpose, as it was here. In Hawkins v. Kronick C. L. Co.157 Minn. 33, 195 N.W. 766, 36 A.L.R. 394, and Jasinuk v. Lombard, 189 Minn. 594, 250 N.W. 568, we endeavored to put all these inconclusive presumptions in their proper place. In the Hawkins case we were dealing with the presumption against self-murder, and, among inconclusive presumptions, none is stronger. Yet we held that there was nothing conclusive or even dominating about it; that, being a mere inference or deduction adopted by the law of evidence, it controls decision only in the absence of opposing proof. In the instant case there is such opposing evidence. In Jasinuk v. Lombard, 189 Minn. 594, 250 N.W. 568, the presumption may have been given controlling weight by the jury, for their verdict was for the plaintiff. But we applied the rule notwithstanding, that unless the evidence is such as to settle the issue as matter of law, the jury takes the case upon all the evidence and all inferences, the presumption included, which are reasonably to be drawn. In Aubin v. Duluth St. Ry. Co. 169 Minn. 342, 343, 211 N.W. 580, the defendant got a reversal because of a charge that the presumption against contributory negligence must *Page 14 yield to "clear proof" to the contrary. That, we held, was error because it gave the presumption too great a force and required more than a mere preponderance of the evidence to overcome it. Recently, in State v. Oliver I. Min. Co. 198 Minn. 385, 394,270 N.W. 609, 614, we had occasion to consider the presumption of verity attending a delinquent tax list, evidencing important and considered official action. We held that, while it made aprima facie case, it must yet succumb to "adequate, competent, and credible evidence" in opposition. Also in point is Del Vecchio v. Bowers, 296 U.S. 280, 287, 56 S.Ct. 190, 193,80 L.ed. 229, involving an issue of suicide or accident. The holding was, in effect, that "the issue must be resolved upon the whole body of proof pro and con; and if it permits an inference either way upon the question of suicide" the decision of the fact finder is not to be disturbed by an appellate court. See also Geldert v. Boehland, 200 Minn. 332, 274 N.W. 245. 3. Shortly after the collision defendant William Johnson made a statement in the form of question and answer to a Mr. Comstock in the office of the county attorney in Minneapolis. Plaintiff's counsel had that statement or a copy of it before the trial. It was silent concerning the car which Johnson testified passed him just before the collision with the Hack truck and caused him to swerve into the latter. When the trial was all but complete, and about midafternoon, plaintiff asked for a recess in order to procure, if possible, the attendance of Mr. Comstock to testify in impeachment of Mr. Johnson's testimony concerning the third car. It is difficult for us to see error in the refusal to grant the request. But were it otherwise, it is too plain for argument that no prejudice resulted to plaintiff. Mr. Johnson's statement went to the jury. Its silence concerning the third car, which Mr. Johnson claimed was involved in the collision, could not have had its effect enhanced by the testimony of Mr. Comstock that Mr. Johnson, in making the statement, said nothing about the third car. The circumstance that Johnson's version taken in the county attorney's office immediately after the accident omitted any mention of the third car doubtless was duly stressed to the jury on behalf of plaintiff. The denial *Page 15 of plaintiff's request for the recess to enable her to procure Mr. Comstock's attendance as a witness presents no ground for reversal. Order affirmed.