Chase v. Tingdale Bros.

Bunn, J. Plaintiff was driving ber electric automobile south on Park avenue, Minneapolis, at about 6:30 p. m. on October 28, 1913. Sbe was on tbe right band side of tbe street about three feet from tbe curb and was driving in a lawful and careful manner, when ber car was struck by an automobile belonging to defendant and driven by its chauffeur. This action was to recover tbe damages sustained to plaintiff’s car by tbe collision. Tbe case was submitted [402] to tbe jury and a verdict for defendant was tbe result. Plaintiff appeals from an order refusing a new trial. Plaintiff claims prejudicial errors in tbe charge, and error in denying ber motion for an instructed verdict in ber favor. These claims are largely based upon tbe premises that plaintiff was driving on tbe right side of tbe street, and that defendant’s ear was on tbe wrong side of tbe street when tbe collision occurred. This is true only in a technical sense. Tbe facts which tbe jury was justified in finding are these: Defendant’s car was being driven north along tbe right band side of Park avenue about six feet from tbe curb, at a speed of from 10 to 15 miles per hour, when an electric car backed out of an alley or driveway in front; there were no lights on this car and no warning bad been given of its approach; defendant’s chauffeur saw tbe electric car suddenly loom up ahead, applied bis brakes and attempted to make a quick turn to tbe left to get around tbe rear of tbe electric; tbe pavement was wet and slippery because of tbe weather, tbe rear wheels of defendant’s car skidded to tbe right, striking tbe right rear-wheel of tbe electric; at substantially tbe same moment tbe front of defendant’s car collided with plaintiff’s automobile, causing tbe damage complained of. Plaintiff’s claims here are centered upon tbe proposition that tbe burden of proof was upon tbe defendant. This is contended on tbe ground that there was a violation of Gr. S. 1913, § 2634, providing that “all vehicles * * * must keep to the right of tbe center of tbe street,” and of section 2635, limiting tbe rate of speed of motor vehicles to 15 miles an hour on public highways that pass through tbe residence portion of a city. As to tbe matter of speed, tbe evidence did not show it was in excess of 15 miles an- hour. As to defendant’s car not keeping to the right of tbe center of tbe street, plainly tbe statute has no application where a motor vehicle, through no fault of its driver, skids on a slippery pavement and is thus thrown across tbe center line. No violation of tbe statute was conclusively shown, and therefore tbe burden of proof to show tbe absence of negligence was not with defendant. Tbe case of [403] Molin v. Wark, 113 Minn. 190, 129 N. W. 383, 41 L.R.A.(N.S.) 346, relied on by plaintiff, is not in point. Plaintiff criticizes an instruction of tbe trial court to tbe effect that, if tbe jury found that defendant violated tbe statute, and that plaintiff’s damages resulted proximately from sucb violation, a “prima facie” case of negligence was made. Tbe use of tbe words “'prima facie” was obviously an inadvertence wbicb would bave been corrected bad it been seasonably called to tbe attention of tbe court. Tbe inaccuracy cannot avail plaintiff now. Steinbauer v. Stone, 85 Minn. 274, 88 N. W. 754. There is a claim of error in an instruction on tbe measure of damages, and in permitting a witness to testify as to tbe cost of repairs to tbe damaged car. As tbe jury never reached tbe question of damages, it is plain that there is nothing to decide here. Plaintiff asked an instruction that she was entitled to a verdict on tbe evidence of defendant’s driver. Insofar as tbe claim that tbe refusal of this instruction was error, is based upon tbe speed of tbe car, or upon its being to tbe left of tbe center of tbe street when tbe collision occurred, it is sufficient to say, as we bave already practically said in discussing tbe statute, that tbe evidence does not conclusively show negligence on tbe part of tbe driver. Taking all tbe circumstances surrounding tbe accident, including tbe emergency that confronted tbe driver, and bis conduct in this emergency, we are satisfied that tbe case was one for tbe jury, and that tbe verdict absolving tbe driver from blame is fairly supported by tbe evidence. Order affirmed.