
    CATHERINE C. NAYLOR v. DAN McDONALD.
    
    March 18, 1932.
    No. 28,784.
    
      
      Ryan, Ryan & Ryan, for appellant.
    
      F. J. McPartlin, for respondent.
    
      
       Reported in 241 N. W. 674.
    
   Olsen, J.

Defendant appeals from an order of the trial court granting a new trial exclusively for errors of law occurring at the trial.

The action is one to recover damages for personal injuries caused by plaintiff’s being struck by an automobile owned and driven by defendant. The issues presented were as to defendant’s negligence and plaintiff’s contributory negligence.

The court granted a new trial on the ground of errors in its charge, which, according to its memorandum, the court found were prejudicial to plaintiff. Plaintiff Avas struck and injured by defendant’s automobile while she was walking across the street on or near the cross-Avalk at the intersection of two of the main streets of the city of Bemidji in this state. There is dispute as to whether plaintiff Avas on the cross-Avalk or a few feet to the side thereof. The accident happened around eight o’clock in the evening of February 18, 1930. The evening was dark and muggy, but the street intersection was in the business section of the town and Avas well lighted.

The court in the first part of its charge said:

“For instance, if you find from the evidence that this Avas an unavoidable accident, your verdict must be, Avould have to be for the defendant.”

It is correct laAV that a defendant is not liable for an unavoidable accident. But, as suggested by the trial court in its memorandum, this accident could not have happened Avithout negligence on the part of one or both of the parties. If stated merely as a rule of lav?- that a person is not liable for Avhat is unavoidable and happens Avithout his negligence, the instruction, in vieAV of other portions of the charge, might have been harmless. But unavoidable accident should not have been submitted to the jury as an issue in this case.

Then again the court charged that the burden rested upon plaintiff to satisfy the jury that she herself Avas not “contributorily negligent.” This statement Avas contradicted by a later charge that the burden of proving contributory negligence rested upon the defendant. But the prior statement Avas not corrected or Avithdraivn, and the case Avent to the jury on contradictory statements of the laAV.

The court charged:

“If you find that the accident occurred at a point on the street outside of the cross-Avalk or intersection, it is the laAV that the plaintiff Avas bound to yield the right of Avay to the defendant. The defendant has the right to assume that any parties on the street outside of the cross-Avalk and intersection Avould observe the laAV and yield the right of Avay to him.”

As already noted, there is dispute as to Avhether plaintiff Avas on the cross-Avalk or a feAv feet outside thereof. But defendant testified that he did not see the plaintiff until just as the car struck her. Plaintiff had been on the cross-Avalk and had proceeded considerably more than half Avay across the street Avhen struck. Defendant had been approaching the cross-Avalk during that time. If he did not see her during that time, he Avould no more have seen her if she had been exactly on the cross-Avalk Avhen struck. The accident, so far as defendant is concerned, Avould have happened just as surely if plaintiff had been on the cross-walk, perhaps an instant sooner. We think there was no basis for an assumption by defendant that a person he did not see or know to be there would yield him the right of way. The statute does not prohibit pedestrians from being upon or crossing streets at places other than on cross-walks. But a pedestrian so upon the street must exercise due care and yield the right of way to automobiles lawfully approaching him on the street. That does not absolve the driver of such an automobile from the duty of exercising due care to prevent injury to persons on the street at all times and places. The driver of an automobile cannot justify running into or over a pedestrian on the street by merely showing that the accident occurred at a place where he had the right of way. The court.should have more fully defined to the jury the relative rights and duties of the parties on a public street.

The court charged:

“If you find that an emergency had been created by the plaintiff, without negligence on the part of the defendant, and by reason thereof, the defendant, acting as a reasonably prudent man under the circumstances, was unable to avoid the collision, the plaintiff cannot recover.”

We can readily see that if a pedestrian should suddenly walk or run into the street in front of an appr'oaching automobile from behind a parked automobile or other obstruction, or suddenly walk out into the street in front of an approaching car even Avhere there was no obstruction to the vieAv, an emergency might be created so that the driver of the car, using all reasonable means to prevent it, might be unable to avoid a collision. But Ave find nothing in the evidence here showing any emergency so created or justifying the submission of that issue to the jury.

The issue of contributory negligence was someAvhat emphasized. The court correctly defined “contributory negligence” as being the failure “to exercise the care that a person of ordinary prudence would have exercised under similar circumstances.” It followed that definition with the statement:

“If the plaintiff could have discovered the danger causing the injury by the exercise of reasonable care, she was guilty of contributory negligence and cannot recover.”

That statement omits the element of time. The rule, we apprehend, is that if, by the exercise of reasonable care she could have discovered the danger in time to avoid injury and failed to exercise such care, then she was negligent.

We agree with the trial court that there were errors in the charge.

Defendant urges that if there were errors in the charge they were mere inadvertences and that plaintiff cannot now complain thereof because no exceptions were taken thereto at the trial. The errors were assigned in the motion for a new trial. The trial court has considered and passed upon them, and we have for consideration the order of the trial court granting the motion. That court having heard the motion and granted a new trial, a matter largely within its discretion, on the ground that the errors were prejudicial, the fact that no exceptions were taken to the charge at the trial is not now important. Had the court denied the motion for a new trial, a different question would have been here presented. Hartikka v. D. G. Cutler Co. 117 Minn. 344, 135 N. W. 1005.

As said in Mingo v. Extrand, 180 Minn. 395, 399, 230 N. W. 895, 897:

“Whether errors in the charge were prejudicial and likely to or did mislead or influence the jury are questions which the trial court is in a better position to determine than is the appellate court. Where there is error in the charge and the trial court deems such error prejudicial and ground for a newr trial, it should require a clear showing of error or abuse of discretion to warrant this court in reversing.” A list of prior cases on the question'is there given, to which may be added Kassmir v. Oreckovsky, 182 Minn. 324, 234 N. W. 473.

The case of Herberg v. Feldman, 168 Minn. 218, 210 N. W. 44, is cited by defendant. In that case the only alleged error for which a new trial was granted by the trial court was an instruction as to plaintiff’s rights under a contract, merely reciting that which the contract provided. Under the facts and contract, the instruction could in no sense be held either erroneous or prejudicial.

Cressy v. Republic Creosoting Co. 108 Minn. 349, 122 N. W. 484; State v. O’Hagan, 124 Minn. 58, 144 N. W. 410; Sassen v. Haegle, 125 Minn. 441, 147 N. W. 445, 52 L.R.A.(N.S.) 1176; Ebeling v. International Harv. Co. 125 Minn. 466, 147 N. W. 441; Soderberg v. Crosier, 160 Minn. 468, 200 N. W. 629, cited by defendant, are all cases where the motion for a new trial was denied by the trial court, or where the appeal was from the judgment after denial of a motion for a new trial.

The order appealed from is affirmed.  