Haeg v. Sprague, Warner Co. Inc. , 202 Minn. 425 ( 1938 )

The feature of this case relied upon to distinguish it from Duffey v. Curtis, 193 Minn. 358, 258 N.W. 744, Ernst v. Union City Mission, 199 Minn. 489, 272 N.W. 385, and similar cases permitting plaintiff's recovery to stand, is the conclusion that when plaintiff entered the intersection "the circumstances were such as to make a collision inescapable if he persisted, as he did, in his attempt to cross Nicollet avenue ahead of Thompson." But this conclusion is not required when the evidence is viewed in a light favorable to plaintiff. The evidence presented a question for the jury as to whether or not the circumstances suggested a danger which would prompt a reasonable man to act otherwise than plaintiff did.

When plaintiff entered the intersection defendant was about 125 feet away. Plaintiff was then 37 feet from the east side of the intersection, for Nicollet avenue there is 37 feet from shoulder to shoulder. The "black top" surface on which Thompson was approaching is 27 feet wide. To reach the other side of the intersection and be clear of the "black top" surface, plaintiff had to travel the width of the westerly shoulder of Nicollet and the "black top" surface, a distance of about 32 feet. Thompson, 125 feet away, was driving at around 45 to 50 miles an hour. His speed was something more than twice that of plaintiff's, but he had to travel four times the distance that plaintiff would travel before he would intercept plaintiff's crossing. Thompson is said to have been traveling 73 1/2 feet a second; plaintiff was traveling 29 1/3 feet a second. Figured closely, plaintiff would travel his 32 feet before Thompson could travel the 125 feet. The respective speeds and positions of the cars at that time indicated that plaintiff would cross safely if each continued at his then speed. Certainly, if Thompson slackened his speed, or if he slackened his speed and turned to the left, or if he came to a stop, plaintiff would encounter no danger. The possibility of danger depended upon what Thompson would do during the 125 feet that separated him from the intersection, and, more specifically, depended upon whether Thompson would decrease or increase his speed. Plaintiff, present at the intersection, had a right to assume that Thompson would exercise ordinary care, which in this case meant that Thompson would slacken his speed and allow for plaintiff's presence at the intersection. Primock v. Goldenberg, 161 Minn. 160, 200 N.W. 920, 37 A.L.R. 484. Plaintiff's reliance upon that assumption did not necessarily become negligence unless and until he became aware that Thompson could not or would not slacken his speed. Primock v. Goldenberg, supra; Guthrie v. Brown, 192 Minn. 434,256 N.W. 898; Duffey v. Curtis, supra; Montague v. Loose-Wiles Biscuit Co. 194 Minn. 546, 261 N.W. 188; Ernst v. Union City Mission,supra; Nye v. Bach, 196 Minn. 330, 265 N.W. 300. The majority opinion reasons that the presence of Thompson's car 125 feet away, approaching at 45 to 50 miles an hour, charged plaintiff with knowledge that Thompson could not or would not slacken his speed or otherwise make allowances for plaintiff's presence. In support of this it is said that it was physically impossible for Thompson to stop his car within 125 feet. But plaintiff's caution or lack of it in proceeding did not necessarily depend upon whether or not Thompson could bring his car to a complete stop in the distance that separated them. Plaintiff would be sufficiently protected if Thompson slackened his speed, and any appreciable effort to that end would allow plaintiff ample time and room to cross the 27 feet of "black top" surface in safety. It will not be said that Thompson could not lessen his speed in 125 feet. Thompson testified that he applied his brakes when he saw plaintiff in the intersection and reduced his speed from 45 to 22 1/2 miles an hour, in 50 feet. If Thompson could slacken his speed in the distance he had to travel, plaintiff had good reason to assume that he would, for it was Thompson's duty to do that, notwithstanding his position to the right of plaintiff as the cars approached the intersection. Primock v. Goldenberg, supra. In that case the plaintiff, coming from the left, entered the intersection when the defendant was 125 feet to the right and approaching at what seemed to the plaintiff a "very fast" rate of speed. We held that a finding that plaintiff was not guilty of contributory negligence as a matter of law was justified because [160 Minn. 163]: "Drivers approaching from the right are not absolved by the statute from due care * * * Particularly are they obliged, if traveling at a high rate of speed, so to reduce it as to protect others, no matter where they are on the intersection. * * * It was defendant's duty to 'slow down.' He did not do so. Plaintiff had a right to assume that he would." In Nye v. Bach, 196 Minn. 330, 265 N.W. 300, the plaintiff approached an intersection from defendant's left and entered when the defendant's car was 40 to 50 feet to the right, coming at 40 to 45 miles an hour. The plaintiff there faced a nearer source of danger than plaintiff at bar, and the speed of the car approaching from the right was only slightly less than Thompson's speed. We held in the Nye case that the jury could find that plaintiff acted reasonably in assuming that the approaching driver would slacken his speed in the remaining 45 feet and allow the plaintiff to cross. We said [196 Minn. 331]:

"Defendant argues that plaintiff should not have driven directly in the path of the danger that must have been apparent to him. It cannot be said as a matter of law that any danger was apparent. Plaintiff was in the intersection first, was on his own side of the highway, and clearly had the right of way. He was justified in assuming that defendant would respect that right."

Mozes v. Borlaug, 190 Minn. 568, 252 N.W. 420, cited by the majority opinion as furnishing the rule applicable to the instant case, was correctly distinguished in Nye v. Bach on the ground that in Mozes v. Borlaug the defendant's car approached with its right front wheel extended over the curb and otherwise obviously out of control. There is no evidence in this case that Thompson's car was out of control. The testimony establishes quite the contrary.

The record presents no reason for depriving plaintiff of the rule of Guthrie v. Brown; Duffey v. Curtis; Montague v. Loose-Wiles Biscuit Co.; Ernst v. Union City Mission; Nye v. Bach; and Primock v. Goldenberg, supra, that whether or not plaintiff was negligent in assuming that Thompson would reduce his speed was a question for the jury. In my judgment, there should be an affirmance in this case.