Tracy H. v. Henriksen

¹ Reported in 7 N.W.2d 387. This action is one for damages claimed to have resulted from defendant's negligent driving of a car. A verdict was returned for the defendant.

On the ninth day of August 1940, at about 8:20 p. m., plaintiff Tracy H. Marsh and two other ladies were returning to Minneapolis in defendant's car. Defendant was driving the car. They were near Farmington, Minnesota, on a somewhat narrow pavement. It was dusk and raining, and, as a result of the rain, mud had been tracked upon the edge of the pavement by trucks and other traffic. Some 15 to 20 miles preceding the accident here involved, defendant's right front wheel had gone off the pavement and onto the shoulder. Defendant then reduced the speed of her car and was driving from 30 to 35 miles per hour. She continued at this speed until the accident occurred. The right front wheel again left the pavement. Defendant kept the car on the shoulder of the road for a short distance and then attempted to get back on the pavement again. At the point where she tried to return to the pavement her car skidded as a result of the slippery pavement and crossed over to the other side, coming to a stop, and there falling gently to its left side. Defendant testified that as she tried to bring the car back on the pavement she used only moderate force in applying her brakes in order to prevent skidding from taking place on the wet pavement. In any event, according to her testimony, the car did not go over two or three car lengths from the moment it left the pavement to where it came to a complete stop. A bus driver testified that he was coming at the time from the opposite direction, saw defendant's headlights as they crossed and left the road, but thought that the defendant was turning into a farm driveway. Defendant testified that she could not recall seeing the lights of the bus. The car was not seriously damaged. It was driven to Minneapolis, without repair, the next morning at a speed of 50 to 60 miles per hour.

The facts as stated are those most favorable to the plaintiff but supported by the evidence. The jury was entitled to believe them. It was also entitled to conclude that the accident was caused solely by the condition of the highway and that defendant was not guilty of driving at an excessive rate of speed, or that she failed to keep a proper lookout or to keep her car under reasonable control. These are the only acts of negligence specifically claimed against the defendant. The evidence here is even more clear and compelling in favor of defendant than that in Schultz v. Rosner, 209 Minn. 462,296 N.W. 532, in which the verdict of the jury in defendant's favor was upheld.

The claim is made that, the car having left the road, skidded, and turned over and no explanation having been made of this occurrence, such as a blowout or blinding approaching lights, the jury was required to find that the defendant was negligent. In substance, this is a claim that the doctrine ofres ipsa loquitur required a verdict for the plaintiff. Even assuming that the doctrine is applicable to the facts in this case, this court has repeatedly held that it merely justifies a verdict for the plaintiff but does not require it. Heffter v. Northern States Power Co. 173 Minn. 215, 217 N.W. 102. In Nicol v. Geitler, 188 Minn. 69, 73, 247 N.W. 8, 10, this court said:

"The car left the paved road, went over the shoulder, and turned over. This made a prima facie case of negligence for plaintiff. It permits, but does not compel, a finding of negligence, though it is sufficient to sustain such finding. Such is the rule of res ipsa loquitur, * * *."

Wenger v. Velie, 205 Minn. 558, 286 N.W. 885, is distinguishable. There the evidence, including defendant's own explanation, and not the application of the doctrine, compelled the conclusion that he was negligent.

The trial court ruled out testimony of the plaintiff Mrs. Marsh relating to the speed at which the car was going at the time of the accident. Her testimony regarding her ability to estimate the speed was highly unsatisfactory and rested largely upon her statement that subsequent to the accident she and her husband had acquired a new car, and that from the use of this car she could now form a conclusion as to the speed of the car in question, although she was unable to do so at the time of the accident. The car in question was also a new one. Whether or not a sufficient foundation had been laid for the admission of her opinion was clearly within the trial court's discretion. In re Estate of Olson v. Johnson, 148 Minn. 122,180 N.W. 1009, 181 N.W. 569; Olthoff v. G. N. Ry. Co. 135 Minn. 72,160 N.W. 206; Clarke v. Philadelphia Reading C. I. Co.92 Minn. 418, 100 N.W. 231. There was no abuse of this discretion.

Judgment affirmed.