Cohen v. Silverman

Hallam, J. Plaintiff was riding as a gratuitous passenger in an automobile driven by defendant Silverman. Tbe car came into collision with a truck of defendant Beck. In tbe collision plaintiff was injured and sued both Silverman and Beck for damages. At tbe conclusion of plaintiff’s case tbe court directed a verdict in favor of defendant Beck. Tbe case proceeded against defendant Silverman and the jury found a verdict against him. Defendant Silverman appeals. Defendant Silverman contends that tbe evidence is insufficient to warrant a finding that be was negligent. We think tbe evidence is sufficient. Silverman was going north on Third street. Tbe Beck truck was going south on tbe same street. It was on November 26, and, as plaintiff claims, after dark. Silverman undertook to make a left turn on to Sixth avenue North. It was while making this turn that tbe collision occurred. Tbe record is somewhat vague as, to tbe precise place of tbe collision, partly by reason of tbe fact that locations were sometimes indicated by tbe witnesses by pointing to a map. Tbe jury could see tbe places indicated, but they were not in all cases marked on tbe map. Tbe record does, however, show plaintiff’s testimony, that Silverman made a “short turn,” and that be “didn’t go out into tbe center of Sixth street before be turned,” and again that be began to turn “to tbe left of tbe [393] center of Third street.” After the collision, Silverman’s car was against the curb at the southwest corner of the intersection and the truck was partially on the sidewalk nearby. The evidence is sufficient to sustain a finding that Silverman’s car did not pass to the right of the center of the intersection, as required by General Statutes 1913, § 2634, as amended chapter 472, Laws 1921, § 6, p. 785. If Silverman failed to pass to the right of the center of the intersection as this statute requires, he was negligent as a matter of law. Schaar v. Conforth, 128 Minn. 460, 151 N. W. 275. There is other evidence of negligence. It appears that the Beck truck had the right of way. Holman v. Ivins, 150 Minn. 285, 184 N. W. 1026. The Beck truck was in plain sight and approaching slowly, yet Silverman passed directly in front of the truck and said he did not see it. He did not yield the right of way and could not have been keeping a careful lookout for other vehicles. The Beck truck was without lights, but this did not relieve Silverman of his duty to exercise care. 2. If Silverman was negligent, there can be but little question that his negligence was a contributing cause of the collision. Blindly cutting a corner in making a left turn at a street intersection, when there is a nearby car approaching from the right, is without much doubt a proximate cause of a collision that follows. The want of lights on the truck may have been a contributing cause of the collision, but we cannot say that it was the sole cause. Defendant Silverman contends that the evidence showed that the driver of the truck was negligent, and that it was error prejudicial to Silverman to direct a verdict in his favor. It seems clear that in this the court did err. We need not determine whether it is ever proper to direct a verdict at that stage of the case. It is admitted that the truck driver was driving without lights. The sun set at 4:36 p. m. This was a fact of which the court takes judicial notice. Berry, Automobiles, § 182. Topper v. Maple, 181 Iowa, 786, 165 N. W. 28; Everart v. Fischer, 75 Ore. 316, 145 Pac. 33, 147 Pac. 189. There is evidence that the collision occurred more than an hour after 4:36 p. m. The statute requires every motor vehicle to display lighted lamps from one hour after sunset [394] to one hour before sunrise. Gr. S. 1913, § 2632. Even if the collision did not occur within the period during which the statute requires lights to be carried, still, if it was dark and reasonable care required the exhibition of a light, the driver would be negligent in not carrying lights. See Armstead v. Lounsberry, 129 Minn. 35, 151 N. W. 542, L. R. A. 1915D, 628; Hinkel v. Stemper, 148 Minn. 77, 180 N. W. 918. The question of the liability of defendant Beck should have been submitted to the jury. We are of the opinion, however, that defendant Silverman cannot avail himself of the court’s- error. As a general rule one tort-feasor cannot complain of the dismissal of a case against a joint tort-feasor. Clark v. City of Austin, 38 Minn. 487, 38 N. W. 615; Adams v. City of Thief River Falls, 84 Minn. 30, 86 N. W. 767; Peterson v. City of Red Wing, 101 Minn. 62, 111 N. W. 840. Plaintiff may sue one or all. Those sued cannot complain that others are not joined. It follows that none can complain of the dismissal of a suit against others than himself. Defendant contends, however, that the circumstances of the dismissal were such as to prejudice him, that the court in effect gave the jury to understand that the truck driver was not negligent, with the result that there was little else left for them but to find Silverman negligent. There may be cases where the circumstances of dismissal of the action as to one joint tort-feasor sued, may prejudice another against whom the suit proceeds. But in our judgment this is not such a case. The court in his charge made it very clear that, at the time the case was submitted to the jury, there was evidence, not in the case when defendant Beck was dismissed, from which they might find that the truck driver was negligent, and that Silverman was not negligent. Evidence that the collision occurred more than an hour after sundown had been supplied. The charge of the court fairly instructed the jury as to the issues and fully safeguarded the rights of defendant Silverman. There is an additional reason in this case why defendant Silverman cannot complain. Before the case closed, plaintiff asked leave to reopen the case as to defendant Beck and defendant Silverman objected, and his objection was sustained. Having been in [395] strumental in keeping Beck out of the case he cannot now object that Beck is not in the case. Order affirmed.