DocketNumber: Nos. 34,115, 34,116.
Citation Numbers: 22 N.W.2d 450, 221 Minn. 446, 1946 Minn. LEXIS 483
Judges: Peterson, Christianson
Filed Date: 4/5/1946
Status: Precedential
Modified Date: 10/19/2024
Late in the afternoon of February 28, 1944, but when it was still daylight, Elzea and Loraen were killed as a result of a head-on collision between auto trucks driven by them on a paved trunk highway at a point outside the corporate limits of a municipality.
1. Defendants contend that the evidence does not show negligence on their part. We think that there was evidence reasonably tending to show that defendant Pittman was driving the truck of defendant Orbuch in a southerly direction in the west lane of the pavement; that he slackened his speed for a distance of about 300 feet before reaching an intersecting gravel road into which he intended to make a left turn; that decedent Loraen was driving a truck loaded with hogs in a southerly direction so closely behind the Orbuch truck that he could not stop in time to avoid a collision with it, if it stopped; that, because he was driving so closely behind the Orbuch truck, he could not see whether the east lane was free from oncoming traffic; that at the same time Pittman and Loraen were approaching the gravel road from the north decedent Elzea was approaching it from the south at a speed estimated to be from 35 to 45 miles per hour; that Pittman either failed to give any signal at all of his intention to make a left turn or to stop, or that he gave one that was not visible to Loraen; that Pittman stopped suddenly in front of Loraen; that Loraen, in order to avoid running into the rear of the Orbuch truck, swerved suddenly to get into the east lane and got directly in the path of the Elzea truck; that Elzea turned toward the outside of the shoulder and the ditch; that in so doing the Elzea truck hit the right front side of the Loraen truck, turned it around, and dragged it approximately 75 feet across the ditch to a nearby farm gate; that both trucks were badly wrecked; and that Elzea and Loraen were killed as a result of the wreck. Findings of these facts are implicit in the verdict. *Page 449
Defendants seriously challenge the sufficiency of the evidence to sustain findings of most of these facts. We have examined the record carefully and have come to the conclusion that, when viewed objectively, the facts found by the jury are reasonably supported by the evidence. We do not deem it necessary to discuss the evidence in detail to demonstrate the correctness of the verdict. Not only is such a demonstration no part of the function of an appellate court, but it serves no useful purpose. Smith v. County of Ramsey,
In view of these facts, the jury was warranted in finding the defendants guilty of negligence. Pittman's failure to give Loraen a visible signal constituted a violation of Minn. St. 1941, §
2. The facts shown support a finding that the negligence of Pittman and Loraen was the proximate cause of the collision between *Page 450
the Loraen and Elzea trucks. Their negligence was concurrent. Pittman's negligence, by combining with Loraen's negligence and causing him to turn into the path of Elzea's oncoming truck, set in motion a chain of events culminating in the collision. Walker v. Stecher,
3. Defendants urge that Elzea's contributory negligence appears as a matter of law and thus bars recovery. This contention is based upon the fact that Elzea drove his truck in excess of 35 miles per hour in violation of the governor's executive order fixing 35 miles as the maximum speed for motor vehicles. The order was promulgated under authorization of L. 1943, c. 252,2 "in order to conserve essential materials" as a wartime measure, and the order recites that it was issued for such purpose. Defendants contend that the violation of the order constitutes prima facie evidence of negligence which, for want of a showing to overcome it, compels a finding of negligence under cases like Wojtowicz v. Belden,
"If the statute or ordinance was not enacted for the benefit of the party invoking it, the general rule is that it is wholly immaterial, although the acts which constitute its violation may be admissible on the question of common law negligence. In other words, the general rule is that the violation of such statute or ordinance is not even a circumstance to be considered on the question of negligence or contributory negligence. Whether such statute or ordinance was enacted for the benefit of a particular person is a question of law."
A defendant no more than a plaintiff can claim the benefit of a statute not enacted to afford him protection from a violation thereof. Where, as here, the statute expressly declares the purpose for which it is adopted, the declaration is conclusive and excludes from the statute's coverage cases not embraced within its purpose. Indiana Chicago Coal Co. v. Neal,
4. Several assignments of error challenge rulings permitting plaintiff to explain how a tachometer operates and to show that what defendants claimed were tachogram readings were not such in fact. Defendants introduced a disk forcibly taken out of the tachometer on the Elzea truck by state highway patrolmen, who interpreted certain marks thereon as showing that the Elzea truck was going 58 miles per hour at the time of the collision. To meet this testimony, plaintiff was permitted to show how a tachometer registers speed and that the marks claimed to show a speed of 58 miles per hour were not in fact marks recording speed, but marks caused by some instrument used by the highway patrolmen in forcibly removing the disk from the tachometer. Explanation of the operation and accuracy of a speed and other recording devices, or lack of such accuracy, is a proper subject of inquiry. Commonwealth v. Buxton,
5. It is also contended that it was error to permit plaintiff's counsel to use a transcript of a statement made by Pittman in cross-examining him, upon the ground that eliciting answers from him as to matters contained in the statement violated the best-evidence rule. The transcript consisted of a typewritten transcription of a court reporter's shorthand notes of an oral statement of the facts concerning the collision made by Pittman to an attorney representing plaintiff. The transcript was shown by the reporter to be a true and accurate transcription of his notes of the statement. In interrogating the witness, he was asked whether he made specific statements and whether they were true. In addition, the reporter was permitted to read answers to specific questions denied by the witness. This was the proper manner of impeaching and contradicting the witness. Stenographic notes of a statement by a party or witness do not constitute a written instrument made by him, but only a memorandum of what he said made by a third party; they have no evidentiary value as such, but are simply a memorandum to refresh the recollection of the stenographer as a witness where he has no independent recollection of the statement. Parol evidence concerning such statements does not violate the best-evidence rule. Heydman v. Red Wing Brick Co.
Some other points are raised, which we do not deem sufficiently important to discuss.
Affirmed.
MR. JUSTICE CHRISTIANSON took no part in the consideration or decision of this case.
Aide v. Taylor , 214 Minn. 212 ( 1943 )
Landeen v. Dejung , 219 Minn. 287 ( 1945 )
Holmes v. Conter , 212 Minn. 394 ( 1942 )
Smith v. County of Ramsey , 218 Minn. 325 ( 1944 )
Schmitt v. Emery , 211 Minn. 547 ( 1942 )
State v. . Benton , 209 N.C. 27 ( 1935 )
Wojtowicz v. Belden , 211 Minn. 461 ( 1942 )
Nees v. Minneapolis Street Railway Co. , 218 Minn. 532 ( 1944 )
Medved v. Doolittle , 220 Minn. 352 ( 1945 )
Walker v. Stecher , 219 Minn. 152 ( 1944 )
Rampon v. Washington Water Power Co. , 94 Wash. 438 ( 1917 )
Kapla v. Lehti , 225 Minn. 325 ( 1948 )
Rivera v. Mandsager , 228 Minn. 227 ( 1949 )
Kronzer v. First Nat. Bank of Minneapolis , 1975 Minn. LEXIS 1346 ( 1975 )
Holz v. Pearson , 229 Minn. 395 ( 1949 )
Clark v. Chicago & North Western Railway Co. , 226 Minn. 375 ( 1948 )
Villegas v. Bryson , 16 Ariz. App. 456 ( 1972 )
Great Coastal Express, Inc. v. Schruefer , 34 Md. App. 706 ( 1977 )