Volume 244 — Minnesota Reports

<bold>Judgments — notwithstanding verdict — view of evidence on</bold> <bold>motion</bold>. <block_quote> 1. A motion for judgment notwithstanding the verdict, whether based on negligence, contributory negligence, or assumption of risk, accepts the view of the evidence most favorable to the verdict.</block_quote> <bold>Negligence — unloading heavy equipment from truck —</bold> <bold>negligence of consignee's employee and proximate cause for</bold> <bold>jury</bold>. <block_quote> 2. Evidence considered and <italic>held</italic> to present questions of fact for the jury on the issues of defendants' negligence and proximate cause.</block_quote> <bold>Same — same — contributory negligence and assumption of risk</bold> <bold>by truck driver for jury</bold>. <block_quote> 3. Evidence considered and <italic>held</italic>, under facts and circumstances presented, that plaintiff's contributory negligence and assumption of risk presented questions of fact for the jury.</block_quote> <bold>Same — contributory negligence and assumption of risk —</bold> <bold>failure to submit separate instruction — not prejudicial in</bold> <bold>case</bold>. <block_quote> 4. In view of the trial court's instructions and the facts and circumstances presented in the instant case, <italic>held</italic> that trial court's failure to submit a separate and distinct instruction on assumption of risk to the jury was not prejudicial error.</block_quote> <bold>Same — unloading heavy equipment from truck — defense of</bold> <bold>workmen's compensation law not applicable</bold>. <block_quote> 5. Urbanski v. Merchants Motor Freight, Inc. <cross_reference>239 Minn. 63</cross_reference>, <cross_reference>57 N.W.2d 686</cross_reference>, followed and <italic>held</italic> that plaintiff's action for personal injuries was not barred by M. S. A. 1949, § <cross_reference>176.06</cross_reference>, because his employer and the defendant company were not engaged in the due course of business "on the same project" within the contemplation of said statute.</block_quote> <bold>Pleading — motion to amend answer — discretion of trial court</bold> <bold>not abused</bold>. <block_quote> 6. Trial court did not err in denying defendants' motion to amend their answers so as to include defense of wilful and wanton negligence<page_number>Page 132</page_number> on the part of plaintiff and in refusing to submit this defense to the jury.</block_quote> <bold>Negligence — unloading heavy equipment from truck — defense</bold> <bold>of act of God not applicable</bold>. <block_quote> 7. Where there was no testimony in the record that high winds had any direct causal connection with the happening of the accident and jury was instructed in detail as to plaintiff's burden of proof with respect to the issues of defendants' negligence and proximate cause, <italic>held</italic>, under circumstances presented, that denial of defendants' requested instruction with reference to the so-called defense of an act of God did not present grounds for reversal.</block_quote>

<bold>Trial — motion for directed verdict — view of evidence</bold>. <block_quote> 1. Where one party moves for a directed verdict there must be admitted for the purposes of the motion the credibility of the evidence for the adverse party and every inference which may be fairly drawn from such evidence, and the most favorable aspect must be ascribed to the evidence of the adverse party.</block_quote> <bold>Same — same — when allowed</bold>. <block_quote> 2. A verdict may be directed only in those unequivocal cases where it clearly appears to the court on the trial that it would be its manifest duty to set aside a contrary verdict as not justified by the evidence or as contrary to the law applicable to the case.</block_quote> <bold>Same — same — a duty — need for caution</bold>. <block_quote> 3. While the right to direct a verdict also involves the duty to do so, nevertheless, it is a right to be cautiously and sparingly exercised, since in its legal effect it is a determination of the issues by the court without a jury as matters of law. If there is a question of fact, the case should go to the jury, and it becomes reversible error to direct a verdict.</block_quote> <bold>Automobiles — through highways — modification of right-of-way</bold> <bold>and speed rules</bold>. <block_quote> 4. M.S.A. <cross_reference>169.30</cross_reference>, which authorizes the establishment of arterial or through highways and stop signs at one or more points at intersections, does not in any way modify other statutes which control right of way and speed. While the operators of cars upon such streets or highways have the right of way by reason of the through street or highway, such operators are nevertheless bound to operate them with reasonable care as to the traffic entering from the side street, for under our existing statutes this court applies the rule that, after a car has once stopped for an arterial highway or through street in response to the stop sign, the motorist having exercised the ordinary and reasonable<page_number>Page 164</page_number> care required before entering commensurate with the care required under the circumstances, the usual rules in regard to right of way and speed prevail.</block_quote> <bold>Same — same — driver entering — duties</bold>. <block_quote> 5. Stop signs at through highways or at stop street intersections do not require cars to enter the arterial street or highway at their peril but only to obey the statutory requirements of § <cross_reference>169.20</cross_reference>, sub. 3, and to exercise ordinary and reasonable care with regard to traffic on the through street or highway before entering thereon. The motorist must, however, make such reasonable observations as the conditions surrounding the intersection will permit before he proceeds across.</block_quote> <bold>Same — same — driver thereon — forfeiture of right of way</bold> <bold>for speeding</bold>. <block_quote> 6. The driver who has the right of way on the arterial highway or through street by reason of § <cross_reference>169.20</cross_reference>, subd. 3, nevertheless, cannot ignore the statute on speed restrictions, § <cross_reference>169.14</cross_reference>, subds. 1, 2, and 3; and, if a driver upon an arterial highway or through street travels at an unlawful speed across such highway or street intersection, he forfeits the right of way which he might otherwise have.</block_quote> <bold>Same — same — driver entering — number of times he must</bold> <bold>look</bold>. <block_quote> 7. Due care in looking on the part of a motorist is not measured by the number of times he looks, for there is no rule of law requiring a driver who has looked effectively once to look again, but whether or not there was negligence in failing to do so is for the jury to decide.</block_quote> <bold>Same — same — same — when right of way becomes his</bold>. <block_quote> 8. A motorist entering an arterial highway or a through street must stop and in so doing must recognize and have in mind that he is inviting approaching vehicles to proceed through the intersection. Once the motorist entering upon the arterial street or highway has stopped and used due care as to vehicles in or near the intersection, he may proceed with the benefit of the right of way and is not negligent if an accident occurs.</block_quote> <bold>Same — same — same — exercise of care — question of fact</bold>. <block_quote> 9. In the case before us upon the state of the record the question of negligence, or of contributory negligence, for an alleged statutory violation is not one of law for the court but a question of fact for the jury. The trial court erred in directing a verdict against the plaintiff holding him guilty of contributory negligence as a matter of law.</block_quote><page_number>Page 165</page_number>

<bold>Pleading — cause of action for fraud — requirements —</bold> <bold>failure to state</bold>. <block_quote> 1. Rule 9.02 of the Rules of Civil Procedure requires that where fraud is alleged the circumstances constituting the fraud must be stated with particularity in the pleadings. Since the alleged misrepresentation relied upon in the instant case was not the proximate cause of plaintiff's damages, <italic>held</italic> the complaint does not state a claim for relief based on fraud or deceit.</block_quote> <bold>Same — inducing breach of contract — statute of frauds</bold> <bold>immaterial — sufficiency of complaint</bold>. <block_quote> 2. If the interference is without sufficient justification, an action for inducing breach of contract may be maintained even though the means<page_number>Page 289</page_number> employed in inducing the breach are in themselves lawful. According to the better reasoned view, the defendants in such an action cannot avoid liability merely because the contract breached is within the statute of frauds and unenforceable. <italic>Held</italic> the complaint in instant case, liberally construed in accordance with the new rules of civil procedure, sufficiently states a claim for relief for inducing breach of contract.</block_quote> <bold>Same — cause of action for breach of contract not stated</bold>. <block_quote> 3. <italic>Held</italic>, under any view of the facts alleged, the complaint does not state a claim for relief for breach of contract.</block_quote>

<bold>Criminal law — statutory offense — definiteness — due</bold> <bold>process</bold>. <block_quote> 1. To satisfy the due process clauses of the state and federal constitutions, a statutory offense must be declared in words of determinative significance so that a man may know which acts it is his duty to avoid. When resort to established rules of construction reveal that words defining an offense have acquired a meaning based upon reasonably definite standards by virtue of statutory definitions, at common law, or long-established general usage, the statute will be sustained against a charge of uncertainty.</block_quote> <bold>Same — same — same — "carelessness."</bold> <block_quote> 2. The term "carelessness in mistaking the person shot for a deer" as used in M.S.A. <cross_reference>619.15</cross_reference> (3), which defines homicide by reason thereof as manslaughter in the first degree, is not so vague and indefinite that men of ordinary understanding would not know which acts it is their duty to avoid by reason thereof. At common law and by long-established usage, the term "carelessness" has acquired a meaning based upon the standards applied to ordinary negligence and is synonymous therewith.</block_quote> <bold>Same — same — same — same</bold>. <block_quote> 3. Works of standard lexicographers indicate that by general usage the term "carelessness" has acquired an accepted meaning, the import of which should be readily understood by men of ordinary intelligence.</block_quote><page_number>Page 297</page_number> <bold>Same — same — rule of construction</bold>. <block_quote> 4. Section <cross_reference>645.08</cross_reference> imposes upon the court the obligation of construing words used in statutory enactments according to their approved and recognized meaning unless a contrary legislative intent is discernible therein, and thereunder the term "carelessness" as used in § <cross_reference>619.15</cross_reference> (3) must be construed in accordance with its recognized meaning as synonymous with ordinary negligence.</block_quote> <bold>Same — same — degrees of negligence recognized in homicide</bold>. <block_quote> 5. Our statutes with reference to homicides recognize different degrees of negligence as the basis for distinguishing between different crimes although in civil cases differing degrees of negligence are not recognized.</block_quote>

<bold>Automobiles — contributory negligence — duty to sound horn on</bold> <bold>passing</bold>. <block_quote> 1. A person driving a motor vehicle upon a public highway, when about to overtake and pass another from the rear, is not required to give a signal by horn or otherwise unless ordinary care would require him to do so. <italic>Held</italic> that it was not error for the trial court to submit to the jury the issue of whether or not plaintiff should have sounded his horn.</block_quote> <bold>Damages — recovery for permanent injuries — reasonable</bold> <bold>medical certainty required</bold>. <block_quote> 2. For a person to recover for permanent injuries it must appear to a reasonable medical certainty that there will be permanent injury.</block_quote> <bold>Evidence — expert testimony — meaning must be taken from</bold> <bold>testimony as a whole</bold>. <block_quote> 3. In ascertaining the meaning of an expert's testimony the meaning must be drawn from the entire testimony of the witness and not from isolated portions of it. <italic>Held</italic> that it was not error for the trial court to submit to the jury the issue of the permanent effect of injuries suffered by plaintiff.</block_quote>

<bold>Appeal and error — review — lack of settled case</bold>. <block_quote> 1. Although plaintiffs on appeal furnish a printed record and briefs are duly filed, this court cannot review findings of fact without a settled case below showing upon what evidence the findings were based.</block_quote> <bold>Same — conclusions of law sustain judgment</bold>. <block_quote> 2. Insofar as errors of fact are concerned, no question is presented on this appeal. The court had jurisdiction; the findings stand in effect unchallenged; and the conclusions of law sustain the judgment entered.</block_quote>

<bold>Workmen's compensation — award vacated for cause</bold>. <block_quote> 1. Under M.S.A. 1949, § <cross_reference>176.60</cross_reference>, in effect at the time of the accident here, the final award of the commission, though based on stipulation for final settlement, may be set aside for "cause" and a new hearing granted. Whether sufficient "cause" exists therefor ordinarily is a question for determination within the discretion of the commission.</block_quote> <bold>Same — same — sufficient cause</bold>. <block_quote> 2. "Cause" sufficient to justify vacation of an award is established where it is demonstrated that subsequent thereto new facts with reference to the injury have developed or where it is shown that facts relating to the injury were in existence but unknown at the time the award was made. Where medical reports submitted upon petition to vacate an award are not in conflict as to such new developments, refusal to vacate an award may constitute an abuse of discretion.</block_quote> <bold>Same — same — sufficiency of evidence</bold>. <block_quote> 3. Medical reports submitted with petition to vacate award summarized and held to establish without dispute that relator was suffering substantial additional disability as a result of original accident and to require that award be vacated and hearings conducted to ascertain<page_number>Page 370</page_number> whether increased disability is the result of the development of facts which were unknown or unanticipated at the time such award was made.</block_quote> <bold>Same — same — contributing cause developed after accident</bold>. <block_quote> 4. Where a neurological condition, which has developed since the accident, may be a contributing factor to relator's present disability, but where it is not disputed that developments with reference to the injury resulting from the accident have also substantially increased relator's disability, the former should not limit the commission in vacating the award and conducting further hearings to ascertain the facts with reference to such disability, and the cause thereof.</block_quote> <bold>Same — refusal to submit to operation — permanent disability</bold> <bold>not precluded</bold>. <block_quote> 5. Where resort to surgery may be attended with danger or where the outcome thereof is doubtful, the refusal of a claimant to submit thereto will not preclude a finding of permanent total disability.</block_quote>

<bold>Street railway — duty of care</bold>. <block_quote> 1. While a street railway company as a common carrier of passengers is not an insurer of their safety, it is required to take every reasonable precaution for their safety; and the rule is well settled in this state that street railway companies, as carriers of passengers for hire, are bound to exercise the highest degree of care and diligence consistent with the nature of their undertaking and are responsible for the slightest negligence.</block_quote> <bold>Negligence — truck driver — degree of care</bold>. <block_quote> 2. The defendants Biscoe, operating the truck involved in the collision, are charged with the exercise of that reasonable care commensurate with the circumstances and the dangers involved applicable under the standard of ordinary care in negligence cases.</block_quote> <bold>Evidence — plaintiff not bound by own testimony — may be</bold> <bold>contradicted</bold>. <block_quote> 3. Where, as here, the testimony of the plaintiff, a party to the action, consists of a narrative of events which she observed, preceding an intersection collision, as to movements of a streetcar in which she was riding as a passenger and a truck approaching on another intersecting highway, such testimony may be contradicted by the testimony of other witnesses and she is not as a matter of law bound thereby.</block_quote> <bold>Same — sufficiency — single witness's testimony</bold>. <block_quote> 4. Conflicts in evidence, however sharp, are to be resolved by the jury, and its verdict will not be set aside unless it is manifestly and palpably contrary to the evidence as a whole. The rule in Minnesota, in general, is to the effect that the testimony of a single witness, no matter what the issue or who the person, may legally suffice as evidence upon which the jury may found a verdict.</block_quote><page_number>Page 417</page_number> <bold>Negligence — question of fact</bold>. <block_quote> 5. It is only when different minds can reasonably arrive at but one result that fact issues become questions of law justifying a court in substituting its judgment for that of a jury. Granting judgment notwithstanding the verdict in this case in favor of certain defendants was not justified by the evidence as a whole and hence constitutes reversible error.</block_quote> <bold>New trial — alternative motion for new trial or judgment</bold> <bold>notwithstanding verdict — trial court to rule on new trial</bold> <bold>when judgment notwithstanding verdict vacated</bold>. <block_quote> 6. Since the motion for judgment notwithstanding the verdict included in the alternative a motion for a new trial, which has neither been granted nor denied under the provisions of Rule 50.02 (2) of the Rules of Civil Procedure, the reversal accordingly vacates the order as a whole, reinstating the verdict, and requires when the remittitur goes down that the trial court reconsider and rule on the motion for a new trial.</block_quote>