Holt, Justice.
About nine o’clock p. m. December 25, 1939, on the way from Faribault to St. Paul, plaintiff’s Dodge sedan slued and stalled some 200 feet south of where the highway passes under the “Dan
Patch” railroad. This point is near the northerly limits of the city of Northñeld. The highway for a distance of 1,450 feet is straight from there toward Northñeld and slopes slightly towards the underpass. The snow had been plowed from the pavement, which was 18 feet wide, and also from about four feet of the shoulders, and was in a ridge or drift two feet high above the plowed portion on either side of the highway. In the car with plaintiff was his wife, who was then driving it, her young sister, and a nurse. Mrs. Corridan made repeated efforts to start the car, which stood at an angle of 45 degrees northeasterly, wholly blocking the east lane of the pavement and extending some three or four feet over the center line. Auto lights were seen coming from Northñeld, and plaintiff jumped out of the car to flag the drivers down. He passed to the south of his car some 20 or 30 feet on the west shoulder waving his hat toward the approaching cars. Mr. King, the driver of the first car, saw the stalled car when within 125 feet thereof and applied the brakes. The pavement was icy and slippery, the rear of the car slued to the west, the front struck a rut, the car spun around, stopping against the snowdrift on the east shoulder, the headlights toward Northñeld. Defendant had followed King’s car from the bridge over the river at Northñeld, and, according to his evidence, was about 40 feet behind King at the time the latter’s car started sluing. Defendant, however, testified that he did not notice the stalled car until within 30 feet thereof, and then when he tried to apply the brakes the rear of the car slued toward the east so that the right side of defendant’s car struck the right side of plaintiff’s car, moving it a foot or so and passing it a few' feet. In its course defendant’s car struck plaintiff, fracturing his leg. Both King and defendant testified that they did not see plaintiff at any time. The testimony agrees that the pavement was icy, rutty, and slippery in places, defendant’s witnesses indicating the condition to be worse than described by the plaintiff’s. The temperature was mild, near the freezing point. The night was dark, but the visibility was good in that there was no fog or mist.
Plaintiff sued for the personal injuries received. Defendant denied that his negligence caused plaintiff’s damage and averred that if damaged plaintiff’s negligence contributed to it, and he counterclaimed for damages to his car alleged to have been caused by plaintiff’s negligence. The reply denied the allegations of the answer and asserted that if defendant’s car was damaged his own negligence caused or proximately contributed thereto. The verdict Avas for plaintiff. Defendant appeals from the order denying his motion for judgment notAvithstanding the verdict or a new trial.
The main contention of defendant is that the record discloses as a matter of laAv that plaintiff’s negligence caused or proximately contributed to the injuries and damage for which he sues, and hence the court erred in denying judgment in favor of defendant notAvithstanding the verdict. When the testimony was closed defendant moved for a directed verdict. We conclude that plaintiff’s contributory negligence Avas for the jury. That plaintiff’s car stalled, as stated, cannot upon the testimony be attributed to any fault or negligence of his or of his wife. The car was equipped Avith a standard battery (Willard) used only six months. His Avife Avas an experienced driver. Her repeated attempts to start the car failed. Plaintiff saw the lights of cars coming from North-field. He testified that he stepped out of his car to flag down the oncoming cars, walked across the pavement back of his car to the Avest shoulder and south on the shoulder some 20 or 30 feet Avaving his hat. He could infer that King, the driver of the first car, saw his signal and stopped short of the stalled car. He also testified that Avhen the headlights of defendant’s car came straight against him he turned north to escape but was struck doAvn after taking one or two steps. It is to be kept in mind that plaintiff knew his car to be wholly blocking the lane of travel of the approaching cars. The jury could AAell find that it was plaintiff’s first duty to warn the drivers of those cars of the danger, and that the course he took was one Ahich a reasonably prudent person would take under the circumstances. Defendant cites and relies on Dragotis v. Kennedy, 190 Minn. 128, 250 N. W. 804, and Haeg v. Sprague,
Warner & Co. Inc. 202 Minn. 425, 281 N. W. 261. In the Dragotis case the plaintiff undertook to assist in repairing a flat tire while the car stood in the lane of travel on a dark, rainy night. He knew it would take some time. He stood with his hack turned to the lane of travel the car blocked. His flashlight pointed down on the tire they were attempting to remove. We think that was no comparison to the situation which confronted plaintiff in the case at bar. In the Haeg case the plaintiff in broad daylight could observe the defendant’s servant coming for quite a distance upon a much traveled highway at great speed towa,rd the right-angle intersection Haeg was about to cross. We think plaintiff’s alleged contributory negligence was for the jury, and an examination of these recent decisions lends support to that conclusion,
viz.,
Anderson v. Kelley, 196 Minn. 578, 265 N. W. 821; Allanson v. Ceynar, 203 Minn. 93, 280 N. W. 6; Ralston v. Tomlinson, 207 Minn. 485, 292 N. W. 24. Defendant does not contend that there is no evidence to sustain a finding that defendant’s negligence caused plaintiff’s injuries and damage. The court did not err in denying defendant’s motion for judgment
non obstante.
Was there error in denying defendant a new trial? The refusal to give defendant’s requested instruction II is assigned as error. It is based on the admitted fact that plaintiff walked south on the west instead of the east shoulder in attempting to warn the approaching cars of the situation. The substance is:
“I charge you that this conduct [walking south on the west shoulder] on the part of the plaintiff was negligence unless you find from all of the evidence in the case that it was excusable or justifiable under all of the circumstances then existing. I further charge you that the burden of proving excuse or justification is upon the plaintiff, Corridan.”
Even if plaintiff walked on the forbidden side of the road, it was only
prima facie
negligence; but we think the court rightly gave the jury the statutory definition of a roadway as “that part of a
highway improved, designed, or ordinarily used for vehicular travel,” and then correctly charged:
“If you decide that plaintiff, Corridan, was not on the roadway at the time he was injured, but was on the shoulder of the highway, then the law just read to you about pedestrians walking near the left side of the roadway giving way to oncoming traffic does not apply to the plaintiff, Corridan.”
There was no error in refusing to give defendant’s requested instruction.
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Holt, Justice.
About nine o’clock p. m. December 25, 1939, on the way from Faribault to St. Paul, plaintiff’s Dodge sedan slued and stalled some 200 feet south of where the highway passes under the “Dan
Patch” railroad. This point is near the northerly limits of the city of Northñeld. The highway for a distance of 1,450 feet is straight from there toward Northñeld and slopes slightly towards the underpass. The snow had been plowed from the pavement, which was 18 feet wide, and also from about four feet of the shoulders, and was in a ridge or drift two feet high above the plowed portion on either side of the highway. In the car with plaintiff was his wife, who was then driving it, her young sister, and a nurse. Mrs. Corridan made repeated efforts to start the car, which stood at an angle of 45 degrees northeasterly, wholly blocking the east lane of the pavement and extending some three or four feet over the center line. Auto lights were seen coming from Northñeld, and plaintiff jumped out of the car to flag the drivers down. He passed to the south of his car some 20 or 30 feet on the west shoulder waving his hat toward the approaching cars. Mr. King, the driver of the first car, saw the stalled car when within 125 feet thereof and applied the brakes. The pavement was icy and slippery, the rear of the car slued to the west, the front struck a rut, the car spun around, stopping against the snowdrift on the east shoulder, the headlights toward Northñeld. Defendant had followed King’s car from the bridge over the river at Northñeld, and, according to his evidence, was about 40 feet behind King at the time the latter’s car started sluing. Defendant, however, testified that he did not notice the stalled car until within 30 feet thereof, and then when he tried to apply the brakes the rear of the car slued toward the east so that the right side of defendant’s car struck the right side of plaintiff’s car, moving it a foot or so and passing it a few' feet. In its course defendant’s car struck plaintiff, fracturing his leg. Both King and defendant testified that they did not see plaintiff at any time. The testimony agrees that the pavement was icy, rutty, and slippery in places, defendant’s witnesses indicating the condition to be worse than described by the plaintiff’s. The temperature was mild, near the freezing point. The night was dark, but the visibility was good in that there was no fog or mist.
Plaintiff sued for the personal injuries received. Defendant denied that his negligence caused plaintiff’s damage and averred that if damaged plaintiff’s negligence contributed to it, and he counterclaimed for damages to his car alleged to have been caused by plaintiff’s negligence. The reply denied the allegations of the answer and asserted that if defendant’s car was damaged his own negligence caused or proximately contributed thereto. The verdict Avas for plaintiff. Defendant appeals from the order denying his motion for judgment notAvithstanding the verdict or a new trial.
The main contention of defendant is that the record discloses as a matter of laAv that plaintiff’s negligence caused or proximately contributed to the injuries and damage for which he sues, and hence the court erred in denying judgment in favor of defendant notAvithstanding the verdict. When the testimony was closed defendant moved for a directed verdict. We conclude that plaintiff’s contributory negligence Avas for the jury. That plaintiff’s car stalled, as stated, cannot upon the testimony be attributed to any fault or negligence of his or of his wife. The car was equipped Avith a standard battery (Willard) used only six months. His Avife Avas an experienced driver. Her repeated attempts to start the car failed. Plaintiff saw the lights of cars coming from North-field. He testified that he stepped out of his car to flag down the oncoming cars, walked across the pavement back of his car to the Avest shoulder and south on the shoulder some 20 or 30 feet Avaving his hat. He could infer that King, the driver of the first car, saw his signal and stopped short of the stalled car. He also testified that Avhen the headlights of defendant’s car came straight against him he turned north to escape but was struck doAvn after taking one or two steps. It is to be kept in mind that plaintiff knew his car to be wholly blocking the lane of travel of the approaching cars. The jury could AAell find that it was plaintiff’s first duty to warn the drivers of those cars of the danger, and that the course he took was one Ahich a reasonably prudent person would take under the circumstances. Defendant cites and relies on Dragotis v. Kennedy, 190 Minn. 128, 250 N. W. 804, and Haeg v. Sprague,
Warner & Co. Inc. 202 Minn. 425, 281 N. W. 261. In the Dragotis case the plaintiff undertook to assist in repairing a flat tire while the car stood in the lane of travel on a dark, rainy night. He knew it would take some time. He stood with his hack turned to the lane of travel the car blocked. His flashlight pointed down on the tire they were attempting to remove. We think that was no comparison to the situation which confronted plaintiff in the case at bar. In the Haeg case the plaintiff in broad daylight could observe the defendant’s servant coming for quite a distance upon a much traveled highway at great speed towa,rd the right-angle intersection Haeg was about to cross. We think plaintiff’s alleged contributory negligence was for the jury, and an examination of these recent decisions lends support to that conclusion,
viz.,
Anderson v. Kelley, 196 Minn. 578, 265 N. W. 821; Allanson v. Ceynar, 203 Minn. 93, 280 N. W. 6; Ralston v. Tomlinson, 207 Minn. 485, 292 N. W. 24. Defendant does not contend that there is no evidence to sustain a finding that defendant’s negligence caused plaintiff’s injuries and damage. The court did not err in denying defendant’s motion for judgment
non obstante.
Was there error in denying defendant a new trial? The refusal to give defendant’s requested instruction II is assigned as error. It is based on the admitted fact that plaintiff walked south on the west instead of the east shoulder in attempting to warn the approaching cars of the situation. The substance is:
“I charge you that this conduct [walking south on the west shoulder] on the part of the plaintiff was negligence unless you find from all of the evidence in the case that it was excusable or justifiable under all of the circumstances then existing. I further charge you that the burden of proving excuse or justification is upon the plaintiff, Corridan.”
Even if plaintiff walked on the forbidden side of the road, it was only
prima facie
negligence; but we think the court rightly gave the jury the statutory definition of a roadway as “that part of a
highway improved, designed, or ordinarily used for vehicular travel,” and then correctly charged:
“If you decide that plaintiff, Corridan, was not on the roadway at the time he was injured, but was on the shoulder of the highway, then the law just read to you about pedestrians walking near the left side of the roadway giving way to oncoming traffic does not apply to the plaintiff, Corridan.”
There was no error in refusing to give defendant’s requested instruction.
The only assignment of error presenting some difficulty is the refusal to give defendant’s requested instruction Y:
“I charge you that if you find from all the evidence that at the time and place in question the defendant, Agranoff, was suddenly confronted by a peril through no fault of his own and if you find that in his attempt to escape or to avoid this peril did not choose the best or the safest way, you should not find that he was negligent because of such choice unless you also find that the choice he made was so hazardous that the ordinarily prudent person would [not] have made it under similar conditions.”
If defendant was entitled to an instruction in respect to a sudden peril so was plaintiff. The stalling of his car on the pavement in the lane of the fast approaching cars presented a sudden peril to his passengers and his car through no fault of his. The same was also true of defendant’s sudden peril from the stalled car, but with this difference, that there is no evidence which would justify the jury in finding that plaintiff or his wife was negligent or to blame for the situation of the car. There was evidence from which the jury could find that defendant’s negligence in respect to speed, his closeness to the King car ahead, under the slippery road conditions, contributed to make the stalled car a sudden peril to him. Even if the instruction was not accurately framed so as to apply to both parties, each asserting a cause of action against the other from the one accident, the trial court’s attention was
called to the fact that there was a claim of sudden emergency to be considered by the jury, and if failure to give a proper rule for the jury’s guidance was prejudicial to defendant there should be a new trial. The court clearly stated the law to the jury as to the claims of each party with regard to the negligence and contributory negligence charged by each against the other, and that the negligence charged and found would have to be a proximate cause of the damage or injury. The jury were charged:
“What constitutes ordinary or reasonable care depends upon the circumstances of each particular case. It must be in proportion to the danger known or reasonably to be apprehended. It must be measured according to the risks or dangers of every particular situation. The greater the danger, the greater care must be required. The care must be what a reasonable man, taking into view the common course of things, would deem to be required in the particular case.”
It seems to us that this was as helpful a rule as could be given under the circumstances. Moreover, the evidence is persuasive that when defendant saw the stalled car and applied the brakes he had thereafter no control of the car whatever. He had then no choice of action, nor did he make any. Even had he seen plaintiff at the time he saw his car he could not have changed the course he was going. We cannot see that defendant was prejudiced by the omission to inform the jury of the emergency rule.
Error is also assigned on the refusal to give defendant’s requested instruction No. YI. The first part of the instruction is unobjectionable, to the effect that each party to the action had the right to act on the assumption that the other would exercise due care in the operation of his own car. Then it reads:
“This rule would have no application, however, to the plaintiff, Corridan, if you should find from all of the evidence that the plaintiff knew or should have known that even the greatest exercise of care on the part of the defendant might not have prevented injury. I charge you that it was not due care on the part of the
plaintiff, Corridan, to depend upon the exercise of care by the defendant, Agranoff, if yon should find that such reliance was at the time and place in question accompanied by obvious danger to the plaintiff.”
Dragotis v. Kennedy, 190 Minn. 128, 250 N. W. 804, is cited. The language of this court was
arguendo
to show that there was in that case contributory negligence as a matter of law. It was not used with a view to formulate an instruction to a jury. It certainly cannot be said that plaintiff by walking south on the west shoulder of this highway exposed himself to obvious danger from cars moving toward him on the east lane of the highway. The instruction was not applicable to the facts disclosed by the evidence.
The order is affirmed.