Dreyer v. Otter Tail Power Co.

¹ Reported in 285 N.W. 707, 287 N.W. 13. Action for personal injury and property damage suffered by plaintiff in an automobile collision. The verdict was for plaintiff. Defendant's motion for judgment notwithstanding or a new trial denied, it appeals.

The place was the right-angle intersection of two graveled and well traveled prairie highways. Defendant's truck was going north. Plaintiff's sedan, coming from the east, ran into it head on, striking the right rear wheel of the truck. The traveled portion of each road was approximately 22 feet in width. There were no "stop" or other highway signs. Flanking the south side of the east-and-west highway to plaintiff's left as lie approached the intersection was a row of trees, between which there was a growth of underbrush and weeds. The most westerly of the trees was far enough from both roads so that an attentive glance by plaintiff before reaching the crossroad, as he got to or passed that tree on his way west, would have shown him the crossroad for several hundred feet to his left. Plaintiff did not know that he was about to enter the intersection at his admitted speed of 35 miles per hour. He did not realize that there was any crossing there until within eight or ten feet of it. He was not aware of the truck until it "flashed" in front of him.

The argument is that a jury could well have concluded that due care did not require him to know that he was about to go over the crossing. We pass the circumstance that he had traveled easterly over the same crossing within the preceding two hours, and confine ourselves to the prospect ahead as he approached the north-and-south road.

On its far side was a group of rural mailboxes, which often, if not always, indicate a traveled way of some kind coming in close by. Plaintiff did not see them. On his right, he could not have failed to observe, had he been even ordinarily attentive, two fence corners, between which the crossroad proceeded northerly. The road on which he was driving had flanking ditches of at least average depth and width. Before him was the prominent square turn of the one on his right where it joined the east ditch of the north-and-south road. Finally, the road itself, with its graveled surface, was there to tell him emphatically of its presence and the attendant danger from traffic thereon.

1. Under such circumstances, it is futile to argue that the driver of an automobile may absolve himself of all obligation to be aware of the intersection and its attendant danger. Diligent counsel on both sides assure us that their search has discovered no case holding one way or the other on this point. It is significant, in view of the enormous bulk of litigation involving automobile collisions at intersections, that no advocate heretofore has had sufficient confidence in the ductility of judicial minds to attempt the claim here made for plaintiff.

Unhesitatingly we hold that such heedless action, under the stated conditions, is negligence as matter of law. The reason, briefly put, is simply this. While an automobile is not technically a dangerous instrumentality, it yet has such propensities for injury that the care required of the operator is always commensurate thereto. That duty attends him always on the highway. It has no more constant exaction than that of attention to what lies ahead. One of the first objectives of such attention is necessarily to discover in due time the presence of a side or intersecting highway. That an autoist has no knowledge of a crossing does not "justify him in driving as if there were no intersecting roads." Dansky v. Kotimaki,125 Me. 72, 75, 130 A. 871, 873.

2. The argument for plaintiff, attempting to excuse him by supposed "distracting circumstances," is equally baseless. There can be no distracting circumstances unless there is also another hazard from which to divert attention. Knowing nothing of the crossroad or defendant's oncoming truck, plaintiff's attention simply could not have been drawn from them. To argue otherwise is like trying to unharness a horse which stands bare of harness.

We are not now considering the rule governing appraisal of conduct in an emergency. In an emergency, not caused by his own negligence, and in an endeavor to avoid a known danger, one may injure a person whose presence was theretofore unknown. Robb v. Pike, 119 Fla. 833, 161 So. 732. Liability will be avoided if the circumstances of emergency allow the conduct, which is proximate cause of the hurt, to be considered an exercise of due care. But that is not a case, properly speaking, of "distracting circumstances." It is rather one in the different legal category of action in emergency. Frequently the same facts will be susceptible to the application of both rules. But where, as here, but one danger threatens the party whose conduct is in question, and that is the only one which, with his own action or inaction, combines to cause injury, there is nothing which can properly be called a distracting circumstance. Distraction is equivalent to diverting or turning aside of attention, a process which simply cannot take place until there is first something from which attention may be turned away.

3. One of the circumstances stressed for plaintiff as distracting is the row of trees on his left as he came to the crossroad. In view of what has just been said, it needs no further comment. Another excuse attempted for plaintiff is that there was enough of a drizzle so that his automatic windshield wipers were in operation. Such usual and necessary operation of a mechanism chosen and used by a litigant cannot relieve him from the duty of care which the circumstances otherwise put upon him. If the hazard is thereby increased, so also the resulting duty. Knapp v. N. P. Ry. Co. 139 Minn. 338,166 N.W. 409. The increase of danger, with its exaction of proportionate care, caused by impaired visibility is expressly recognized by the traffic code. L. 1937, c. 464, § 28(h) (3 Mason Minn. St. 1938 Supp. § 2720-178[h]). Anyway, plaintiff's forward vision was not so impeded, nor its field so restricted, as to excuse him from the duty of care, always that of the driver of an automobile, to know when, in daylight, he is approaching a plainly visible highway crossing.

The failure of plaintiff's faculties to warn him of this one is rationally explained only upon the hypothesis of his utter failure to use them. That is lack of due care as matter of law. It is conduct less excusable by reason than that of one who professes to have looked for, but failed to see, a danger so imminent that real attention could not have failed to discern it. Illustrative is Chandler v. Buchanan, 173 Minn. 31,216 N.W. 254. See also DeHaan v. Wolff, 178 Minn. 426, 227 N.W. 350.

There are many cases holding that a motorist may be excused by circumstances from seeing, in time to avoid collision, the approach of another vehicle. Such a case is Overly v. Troy Launderers Cleaners, Inc. 196 Minn. 413, 265 N.W. 268. But no case has been cited justifying, or permitting a jury to excuse, the driver who in daylight gets himself onto a broad, open crossroad without even knowing such a road was there.

The argument for plaintiff misconceives what is meant in the law of negligence by the phrase "distracting circumstances." No court has attempted to give an exclusive definition, and we make no such attempt. But it is clear that there must be not only another danger from which attention may be diverted, but also that the circumstances relied upon as distracting must be such as of themselves may reasonably be considered to portend danger. City of Radford v. Calhoun, 165 Va. 24, 181 S.E. 345,100 A.L.R. 1378; Carbone v. Boston Me. R. 89 N.H. 12,192 A. 858; 3 Blashfield, Cyc. of Auto. Law and Practice (Perm. ed.) § 1748. Road conditions were held in Haffke v. Missouri Pacific R. Corp. 110 Neb. 125, 193 N.W. 257, not to be an agency of distraction so as to excuse the plaintiff from his failure to perceive the approaching train. Children, particularly if at play close to the highway, frequently make a situation which as much as any may demand the attention of the oncoming motorist and so divert his attention from another danger. Ordinarily distracting circumstances will be found to consist of an object moving or movable which in and of itself threatens, or reasonably may be thought to threaten, danger. Certainly the row of trees to plaintiff's left cannot be put in the category of distracting circumstances inasmuch as they could not be considered to constitute a menace.

Such things as "roughness of the road and darkness of the night" make special demands upon the attention of a chauffeur. But they can "hardly be called distracting circumstances that will excuse" what otherwise is negligence. Haleen v. St. Paul City Ry. Co. 141 Minn. 289, 290, 170 N.W. 207, 208.

It follows that contributory negligence here appears as matter of law. The judgment under review must therefore be reversed with directions to enter judgment for defendant.

So ordered.