Tracy H. v. Henriksen

Streissguth, Justice (dissenting). The defendant’s cruise across U. S. trunk highway No. 218 had two distinct phases, as her own log shows. The first phase ended and the second began when the right front wheel of her car left the east side of the pavement; the second phase included her journey back onto and across the pavement to the ditch on the west side. The majority opinion ignores the first of these phases; its analysis is directed solely to measuring defendant’s conduct during *504 the second phase. It applies the due care gauge to defendant’s handling of her automobile after her car got back on the pavement and not to her acts and conduct in the first instance in permitting the right wheel of her car to travel off the pavement and onto the muddy shoulder. Her own testimony was the only testimony offered in defense. She admitted the former incident of leaving the pavement a few miles back, admitted that Mrs. Marsh had said, “It would be better to drive slow,” and failed to deny statements ascribed to her that she was inclined to drive too much to the right. She further admitted that “at all times [she] could see.” Her whole defense was based upon the fact that it was raining and the pavement was wet, slippery, and muddy. No claim was made that she was blinded by the lights of an approaching car, that she struck any obstacle, that another car crowded her over to the right, or that anything occurred requiring the sudden application of her brakes or a sudden turn of the steering wheel. Accepting her testimony at its face value and adding permissible inferences thereto, we have a situation where a driver of an automobile traveling on a summer night at a speed of 35 miles an hour on a straight and level, but wet and slippery, paved highway permits her car to edge off the right side of the highway, necessitating a sudden turn to the left to get it back on the highway, in accomplishing which the car, notwithstanding the then exercise of belated care, gets out of control and slips completely across the highway and into the ditch on the left side. Counsel for the defendant has skillfully placed all his emphasis upon defendant’s handling of the car after it got back on the highway, trusting that the jury would forget to apply the standard of due care to her original negligent acts in permitting the car to get off the pavement in the first instance, as to which she offered absolutely no reasonable explanation; and, finally, to make it easier for the jury to forget, counsel, on redirect examination of defendant, showed that she was a widow with four children. While counsel’s “punt, pass, and prayer” won the verdict, I feel that, in the interest of *505 justice, the same should be set aside and the case submitted to a new jury. To say that just because a pavement is wet and muddy — not icy — a driver can thereby explain away her failure to stay on an 18- or 20-foot concrete highway, and this without any other contributing factor such as an obstruction on the highway, the blinding lights of an approaching car or of one traveling on the wrong side of the highway, or like circumstances, is to deny the common experience of all automobile drivers. Automobiles driven by women of ordinary care and alertness do not leave wet pavements in the summertime at 35 miles an hour unless the driver is temporarily blinded or is suddenly confronted with an emergency not of her own making, requiring her suddenly to apply her brakes or turn her steering wheel. Res ipsa loquitur wholly aside, the unexplained failure and inexcusable inability of defendant to keep her automobile on the pavement established negligence, and I feel there should at least be a new trial.