Molin v. Wark

Lewis, J. This action is based upon the charge that respondent’s son, Alfred Molin, while riding a motorcycle on Nice street, in the city of St. Paul, was negligently and unlawfully run into by appellant’s automobile. Young Molin testified that he and his companion, Jorgenson, were riding south on the right-hand side of Nice street at a speed of four or five miles an hour, and when nearing Central avenue they saw an automohile coming from the east on Central avenue; that it turned rapidly into Nice street, and ran in a diagonal direction across to the west side; and that he (Molin) thereupon turned toward the curb, for the purpose of passing to the right of the automobile, when the collision occurred. He said: “As soon as I noticed the automobile coming, I threw off my power and applied my brakes. With that it was too late. * * * It was almost a second’s work. It wasn’t very long. I applied my brakes, and it happened. It was all over. * * * ” Jorgenson, who was also riding a motorcycle, testified that they rode down the west side of Nice street at the rate of six or seven miles an hour, and said: “When we just were going to make the turn, the automohile came around. We didn’t have time to think. All we did was to see something come around the corner and then smash. * * * It wasn’t hardly more than-two seconds or so. All we did was see it, and that was all. We saw it, and then I didn’t know where we was.” This witness claimed that the automobile was running from twenty-five to thirty miles an hour when it came around the corner from Central avenue. Both Molin and Jorgenson testified that they were within five or six feet from the west curb, and just before seeing the automobile come around the corner they had swung a little closer to the curb — 192 — for tlie purpose of being in position to make the turn into Central avenue to-go east. Jorgenson was thrown from his motorcycle, but did not get under the automobile. All of the witnesses agreed that the collision occurred at a point about forty feet north of Central avenue, in front of Kamp’s confectionery store, on the west side of Nice street, and that the automobile had practically come to a stop, with the left wheels close to the' curb, when the impact occurred. Molin was found under the automobile, lying with his head towards the'curb and his feet extending a little beyond and just behind the right front wheel. The machine had to be lifted to get him out, and he was unconscious, his left leg broken in two places, and he was otherwise severely bruised and injured. Appellant testified that he came from the east on Central avenue, and turned to the right to go north on Nice street; that he ivas not running more than four or five miles an hour at the time he reached the center of Nice street; that he had his machine under perfect control, and did not turn to the right side of Nice street, for the reason that he saw the two young men on their motorcycles coming down rapidly, a little east of the center of Nice street, apparently with their heads down and not seeing the automobile; and in order to avoid a collision with them he turned his machine to the west side of Nice street, and that after doing so the young men changed their, course toward the automobile, and, just before the collision, Molin, who was in advance of Jorgenson, fell from his machine and slid, head foremost, with his motorcycle, under the automobile. The witness Meyerding testified for respondent as follows: “I' seen the automobile come around the corner there. It was going at a good rate of speed, and I don’t know just what the rate of speed Avas, but it was coming quite fast, and it couldn’t stay on the right side, and the boys there, Molin and Jorgenson, were coming doAvn there on the west side of the’ street, and it didn’t look to me as though they were coming very fast, and they were about three feet from the curb, so when they seen this here auto they hugged the curb as close as they could, and they didn’t have any place at all.' 'They were right up against the curb.” • ■ '■ - : r — 193 — And again: “Well, I noticed that it was going quite fast, and it didn’t seem to be able to make the turn there, and I was expecting the automobile to hit the post there, the telephone post, and I said to the boy that was with me that there would be an accident, and I no more than said that than we seen this Jorgenson and Molin come down the street, and right by the post there they collided with the automobile and the motorcycles.” When asked the reason why the automobile turned to the west side of the street, he said: “Well, it was going so fast that he couldn’t make the turn on the right side, so she had to go to the west side.” Another witness, Emma Berger, testified that she was standing on the porch of her house, two doors north from Kamp’s store, on Bice street, and says that when she first saw the boys she noticed them coming down on the west side of Bice street, running six or seven miles an hour. In estimating the speed at which they were running, she made the comparison that she could run as fast as they were going, and that they were about six feet from the curb. • The impact was heard by several persons in the vicinity; the noise was not like the bursting of a tire, but was the concussion of the motorcycle with the automobile, or the noise made by the machines in the effort of the drivers to control them, or perhaps both. One witness stated that he heard it while inside of a building on the opposite side of the street. The fact that young Molin was found lying on the ground at right angles with the automobile, with his feet sticking out just behind the front right wheel, affords some slight indication that he may have fallen from his wheel and slid through the triangular opening between the guard and the wheel. According to the evidence the space between the step on the right hand side and the ground did not exceed ten inches. If he slid through the space between the step and front wheel, where the guard curves over the front wheel, the automobile must have been standing still at that time. But, even if this did happen, it is inconceivable how his machine passed through at that point. There was some testimony on the part of appellant, and other witnesses for the defense, that there was a dent in the upper part of — 194 — the guard over the right front wheel, and that the machine did not move forward more than three feet after the collision. If Molin’s motorcycle slid under the guard, it could not have been the cause of the dent; and, besides, if the auto moved three feet after the collision, would Molin have been found close to the front wheel, if he passed under at that point? In all probability, both parties were driving much -faster than the lowest estimates, and it was for the jury to decide how the accident occurred, and who was to blame. The trial court correctly submitted the issue to the jury, and instructed them that if they should find that appellant was not in the exercise of reasonable care to avoid the collision in driving his automobile to the west side of the street, and Molin was not guilty of contributory negligence in endeavoring to avoid a collision by remaining upon the west side of the street, then appellant would be liable. Sections 14 and 16, c. 259, pp. 309, 310, Laws 1909, were enacted to avoid just such incidents as occurred on this occasion. .Section 14 provides that persons walking or driving, or operating a vehicle, who are moving in opposite directions, shall slacken their pace, if necessary, and seasonably turn to the right, so as to give half of the traveled road, if practicable, and a fair and equal opportunity to pass, to the other; and “any such person shall, at the intersection of public highways, keep to the right of the intersection of the centers of such highways when turning to the right and pass to the right of such intersection when turning to the left. * * *' All vehicles, however, must keep to the right of the center of the street.” Section 16 provides that upon approaching a dam, bridge, sharp curve, or descent, and upon approaching a crossing or intersecting highway, or in passing from a side street into a main thoroughfare, where persons or vehicles are not plainly discernible, a person operating a motor vehicle shall have such vehicle under perfect control, and the rate of speed shall not exceed one mile in eight minutes. • It was plainly the duty of appellant, in turning the corner from Central avenue into Rice street, to have his automobile under complete control, and to turn into Rice street on the right-hand side; and if the evidence warranted the jury in finding that appellant ran — 195 — Ms car to the west side of the street, for the reason that lie did not have it under control because of tbe bigb rate of speed at wbicb be was running, or because of failure to exercise reasonable care with reference to parties traveling upon tbe west side of tbe street, then be was liable. Tbe court properly charged tbe jury that if Molin’s motorcycle was struck by or came into collision with Jorgenson’s motorcycle, thus causing tbe accident, then respondent could not recover, provided that if.appellant was negligent in passing to tbe west side of tbe street, and that Molin and bis companion were compelled to act hurriedly to avoid a collision with tbe automobile, and in doing so Jorgenson collided with Molin, thereby causing tbe latter to be thrown against or under tbe automobile, respondent would still be entitled to recover, if tbe accident would- not bave happened except for' appellant’s own negligence. We bave examined the several assignments of error argued in tbe brief, and discover nothing wbicb calls for a reversal. One assignment is directed to tbe remarks of respondent’s counsel to tbe jury, as follows: “During tbe lifetime of a man who is twenty years old, handicapped as be is by that wound, injured as be is in tbe collar bone, some substantial and material allowance should be made. You can figure that out as well as I can; but it should be, in my judgment, something substantial and material to cover a period of some sixty years that is left to him, if be lives out the time that tbe tables of mortality allot to him.” Counsel for appellant objected, and took exceptions to tbe remarks as to what tbe tables of mortality show as .to tbe length of life, there being nothing -of that kind in tbe case, whereupon respondent’s counsel replied: “It is true tbe mortality tables are not in evidence. Whatever it is, for all tbe rest of bis life be will bave this crippled leg.” Tbe court remarked: “Well, you may take that back.”. As qualified by tbe counsel and tbe court, tbe jury could not bave been prejudiced, and tbe size of tbe verdict does not indicate it. We bave examined each of tbe assignments directed to tbe charge of tbe court, and find no one of them well taken. Tbe rules of law were carefully stated and tbe issues fully presented. Tbe evidence — 196 — wassufficient to sustain the verdict, as reduced, and there was no error in cutting the verdict down from $4,662.50 to $4,000.. Affirmed. Jagkjard ¿nd Simpson, JJ., took no part.