The opinion
The primary purpose of all courts functioning judicially is to see that justice prevails. That is why courts are rapidly falling into line with the statutory requirement that we should "disregard all errors or defects in the pleadings and proceedings which do not affect the substantial rights of the adverse party." 2 Mason Minn. St. 1927, § 9285; 1 Dunnell, Minn. Dig. (2 ed. Supps. 1932, 1934) §§ 416, 424. See also Gibbon Farmers Elev. Co. v. Herschmann, 160 Minn. 326 , 200 N.W. 293 . Dean Wigmore's article "Reversible Error," 19 Journal of Am. Judicature Society, 28, is interesting and instructive. *Page 516
I am assuming that the premise laid is sound. If that be so, the important question to be considered is whether the challenged instruction, found to be reversible error by the majority, is such as to justify the belief that the same resulted in harm to defendants.
The court in instructing the jury upon this phase of the case read 1 Mason Minn. St. 1927, § 2720-18:
"The driver of any vehicle or street car traveling at an unlawful speed shall forfeit any right of way which he might otherwise have hereunder."
Immediately thereafter the court delivered that portion of the charge which the majority finds fatally faulty. The court then proceeded thus:
"Now, if you find at the time and place of the happening of this accident the defendant Helen Brown, while so driving and operating her automobile in an easterly direction on Eighteenth avenue, brought the same to a full stop before she entered the intersection, then the said Helen Brown had the same right with respect to entering and driving upon said intersection that she would have if it were not a stop street and if she entered said intersection before the car then and there being driven by Bessie Goldie, then the said Helen Brown had the right of way in said intersection, if she entered it first. * * * Now, stop signs do not require cars to enter the arterial or through streets at their peril, but only to exercise ordinary care with regard to the traffic on the street before entering thereon. The operators of cars upon through streets, like on Fremont avenue, are bound to operate them with reasonable care as to the traffic entering from the side streets. Now, the driver of each automobile * * * had the right to assume, until the contrary appeared to them, that the operator of the other automobile would operate that car with the care ordinarily displayed by a reasonably prudent person and that she would comply with the regulations and laws applicable to the use of the highways at that place and at that time."
The challenged instruction follows very closely, although not with strict accuracy, the language of this court in Gibbs v. Almstrom, *Page 517 145 Minn. 35 , 37 , 176 N.W. 173 , 174 , 11 A.L.R. 27 , where this court said:
"The statute does not warrant drivers of vehicles in taking close chances. When a driver approaches a street intersection, if he sees a vehicle approaching from his right, and near enough so that there is reasonable danger of collision if both proceed, then it is his duty to yield the right of way."
Thus it is apparent that if the vehicle approaching from one's right is near enough so that "there is reasonable danger of collision if both proceed, then it is his duty to yield the right of way." It seems to me that this is what the court in substance said to the jury. The moment both drivers violated the statute each forfeited his statutory right of way. From then on each was a wrongdoer. As between them there could be no recovery for injury of one to the other. This, then, would leave them in a situation similar to where there is no statutory rule. The statute was simply out of the picture. Hence, if the charge be technically erroneous, it is clearly harmless. The relative rights and obligations of both drivers would then be governed by common-law rules applicable to negligence cases.
Counsel for defendants say that the rule stated in the Gibbs case was retracted or limited in the later case of Kunz v. Thorp Fire Proof Door Co. 150 Minn. 362 , 185 N.W. 376 . Mr. Justice Hallam wrote both decisions. In the later decision reference was made to the former, but nothing at all was said disapproving what had been said in the Gibbs case.
The case of Jacobsen v. Ahasay, 188 Minn. 179 , 246 N.W. 670 , upon which defendants place considerable reliance, is not helpful here. That case turned upon the proposition that the plaintiffs, who were passenger guests in one of the colliding cars at a street intersection, were absolved from contributory negligence. Not to be overlooked is the further fact that the last quoted sentence in the court's charge was therein approved, and authorities cited to sustain it. *Page 518
Taking the entire record in the light of the charge of the court as a whole, it seems obvious to me that no resulting harm could come to appellants. Both drivers were negligent. The jury so found. The innocent plaintiff suffered serious consequences because of the negligence to which both drivers contributed. Neither has any valid defense as against her. In my opinion, the orders below should be affirmed.