
    NICK PAULUS v. HARRY ROSENFIELD AND ANOTHER.
    
    September 25, 1925.
    No. 24,752.
    Decedent’s contributory negligence for jury.
    1. The evidence made the question of contributory negligence on the part of the deceased a question for the jury.
    Construction of charge.
    2. The charge cannot fairly be construed as stating that the failure of the driver of the truck to sound his horn when making a turn at the street intersection constituted negligence.
    1. See Motor Vehicles, 28 Cyc. p. 49.
    2. See Motor Vehicles, 28 Cyc. p. 49.
    Action in the district court for Hennepin county to recover for the death of plaintiff’s intestate. The case was tried before Dickinson, J., and a jury which returned a verdict in favor of plaintiff. Defendants appealed from an order denying their motion for judgment notwithstanding the verdict or for a new trial.
    -Affirmed.
    
      Willard Converse and Charles Converse, for appellants.
    
      Elliott, Doll & Coursolle, for respondent.
    
      
       Reported in 205 N. W. 245.
    
   Taylor, C.

On October 19, 1923, as Baymond P. Paulus, a 17-year-old messenger boy, was proceeding on a bicycle along the northwesterly side of the street known as Harmon Place in the city of Minneapolis, defendant’s delivery truck, which was proceeding in the opposite direction along the southeasterly side of the street, made a left turn from that street into Maple street. The bicycle and the truck collided, and the boy was thrown upon the pavement and received injuries from which he died a few hours later. Plaintiff, the father of the boy, brought this action as administrator of his estate and recovered a verdict. Defendants appeal from an order denying their alternative motion for judgment non obstante or for a new trial.

Defendants contend: (1) That the boy was guilty of contributory negligence as a matter of law; (2) that the court erred in its instructions to the jury.

1. The burden of establishing contributory negligence rested upon the defendants. The court submitted that issue to the jury, who decided it against the defendants. Only three witnesses testified concerning the accident. Two men who were upon the sidewalk near the junction of the two streets, and who were apparently strangers to both parties, testified in behalf of the plaintiff; the driver of the truck testified in behalf of defendants.

The driver states that on approaching the intersection he slowed down to 6 or 7 miles per hour to make a left turn; that he made the turn at about the center of Maple street; that when 30 or 40 feet from the intersection he saw the boy 60 or 70 feet beyond the intersection coming toward it, but did not see the boy after starting to turn until he heard the crash. One of plaintiff’s witnesses, who was proceeding along tbe sidewalk in tbe same direction as tbe truck and who saw both tbe truck and tbe boy as they approached tbe intersection, states:

“Tbe truck came down Harmon the way we were coming. Tbe boy was coming tbe other way. Tbe boy was over two-tbirds of tbe way across Maple when this truck made a short left-hand turn close to tbe left-hand curb. Instead of going out around to the right, be cut in ahead of tbe boy and struck him and tbe boy fell on tbe right-hand side of truck on the street. * * * Well instead of him going to tbe * * * right side where be should have went, be went in ahead of tbe boy, between tbe boy and the curb. Struck tbe boy on tbe left hand- side. He wasn’t three feet away from tbe curb when be struck tbe boy and knocked tbe boy into tbe center of tbe street. We picked him up and took him to the sanitarium.”

Tbe conceded fact that tbe boy did not fall under tbe truck but away from and on tbe right-band side of it, and that he was lying in tbe center of Maple street when picked up corroborates this witness as to tbe manner of tbe turn and tbe place of tbe collision.

Tbe other witness for plaintiff was pasting a “sticker” on tbe windshield of an automobile parked at the side of tbe street. He beard the crash, looked up, and saw tbe boy and tbe truck. He estimated tbe speed of tbe truck at that time at 30 miles per hour. No one saw tbe boy at tbe moment of tbe collision, or bis movements immediately preceding it. He apparently came in contact with tbe truck near tbe right rear wheel; whether be bad turned toward tbe rear of tbe truck in an attempt to avoid tbe collision no one knows. Tbe facts shown will not warrant the conclusion that be was guilty of contributory negligence as a matter of law. Tbe question was for tbe jury. See sections 7033 and 7034, Dun. Dig. and Supps. and tbe cases cited therein.

2. Tbe driver of tbe truck stated that when 30 or 40 feet from tbe intersection be extended bis arm to indicate that be intended to make a left turn, but did not sound his born when approaching the intersection or maiding tbe turn. Defendants insist that the court in its charge used language which implied that it was tbe duty of the driver to give warning of his approach by sounding the horn. We think that the charge cannot fairly be so construed; and that the jury must have understood from it that in order to find the driver negligent in failing to give further warnings they must find that the circumstances were Such that ordinary care required the giving of such warnings.

We find no ground for a reversal and the order is affirmed.  