Opinion
Nos. 27,610, 27,612.
December 27, 1929.
Defendant auto driver was not negligent.
The driver of an automobile drove her car southerly 10 or 12 miles per hour along a street. In the middle of the block a small child coasted from a 6 1/2-foot terrace, 45 feet west from the center of the street, into the street. The driver, not knowing of the presence of the child, saw it on the sled only 3 feet from the car. She turned to the left and stopped within a few feet. The sled collided with the right rear wheel and the child was injured. Held that the driver of the car was not negligent.
Two actions in the district court for Hennepin county, consolidated for trial, one by Olive Phillips as natural guardian of Elizabeth Phillips, her minor daughter, to recover for injuries received by the latter in a collision with an auto driven by defendant Helen M. Heiser; the other by the mother on her own behalf to recover for medical expenses incurred. There were verdicts for plaintiff in both cases against the defendants, husband and wife. Defendants moved in each case for judgment notwithstanding the verdict or a new trial, and plaintiff appealed from orders, Baldwin, J. granting the motions for judgment. Affirmed.
Willis Doherty, for appellant.
Ernest E. Watson, for respondents.
There are two actions. Plaintiff as guardian obtained a verdict for her ward for $1,000 because of personal injuries. In the other action plaintiff individually obtained a verdict for $295.55 because of disbursements which she, as the mother of the injured child, necessarily incurred because of said injuries. Upon motion of defendants both verdicts were set aside and judgments ordered non obstante. The plaintiff in each of the actions appealed from such orders.
Mrs. Heiser drove her car in second gear southerly on Morgan avenue in Minneapolis. She traveled about 10 or 12 miles per hour and the accident happened in the middle of the block. From a point about 45 feet to the west from the center of the avenue and at the top of a 6 1/2-foot terrace, the 5 1/2-year old child, with a younger child on her sled behind her, coasted down into the street. Mrs. Heiser did not see the coasting children until about 3 feet from her car. She promptly turned her car to the left, attempting to avoid a collision, and stopped within a few feet. The sled collided. with the rear wheel. Perhaps it was in front of the wheel. It was partly broken down as if the wheel came against it. The little girl suffered a broken leg. These actions followed.
Mrs. Heiser had her car under reasonable control. The children were coasting from private grounds, not from an alley or street. It was 10:30 in the forenoon. The evidence does not disclose that she had any notice of the presence of the children. She had no reason to anticipate their doing what they did. We are unable to see wherein she failed to exercise ordinary care under the circumstances.
Both orders are affirmed.