In my opinion plaintiff made a prima facie case against both defendants, and the judgment should be affirmed. The testimony was that each defendant was traveling at a speed from 40 to 45 miles per hour when the collision occurred. Prior to the enactment of L. 1929, p. 153, c. 158, Mason, 1931 Supp. § 2720-4, that speed was *Page 75 prima facie evidence of negligence. 1 Mason, 1927, § 2720-4(b). But even though no inference of negligence follows from a speed not in excess of 45 miles an hour, still in view of surrounding circumstances the jury could find that each defendant was negligent and violated these provisions of the statute:
"No person shall operate or halt any vehicle upon a highway carelessly or heedlessly in disregard of the rights or safety of others or in a manner so as to endanger, or be likely to endanger any person or property." 1 Mason, 1927, § 2720-3(a);
and this:
"Any person driving a vehicle on a highway shall drive the same at a speed not greater than is reasonable and proper, having due regard to the traffic, the surface and width of the highway, and of any other conditions then existing." 1 Mason, 1927, § 2720-4(a).
The conditions existing to be considered by the jury were: The location was suburban, just outside the city limits of St. Cloud; there were streets, residences were adjacent to the highway; a filling station was situated just about where the collision occurred — any passer might desire to turn in there for gas or air; it was nighttime — owing to a slight upgrade from either direction as the highway approached the filling station, the headlights of a car would throw its rays into the eyes of the driver of a meeting car. In that situation I think a jury, under the statutory provisions quoted, could well find a speed of 40 miles or more per hour in meeting a car was unreasonable and negligent. Again the jury could find both defendants negligent in being upon the wrong side of the road from what appeared after the collision. There was testimony that each vehicle had received the blow of the impact on its right side. The truck, which was traveling west, was found on the south of the center line of the highway with its rear wheels off the pavement and the front headed north. The sedan, which was traveling east, found itself turned around in the middle of the pavement facing west. There was nothing in the evidence to which the collision could be attributed except to the negligence of the drivers in the matter of *Page 76 speed and control of their respective vehicles. It was a straight, paved highway, not hilly. There is no evidence of icy or slippery condition. As far as the evidence goes, the one driver was equally at fault with the other both as to high speed and lack of control; at least the jury could so find.
Another consideration leads to the conclusion that the verdict has support. Each defendant by his answer virtually admits that negligence caused the collision, but as an affirmative defense avers that it was caused solely by the negligence of the other defendant. The two defendants were in better position than any other witness living to tell the facts of the accident. Either could have testified. Neither did. Either could have produced the testimony of his codefendant. Neither did. Both deliberately made themselves difficult to reach. It is joking with facts to say otherwise. In that situation the jury in making its finding was justified in interring that their testimony given truthfully would have been unfavorable to themselves. In Wilson v. N.W. Nat. L. Ins. Co.103 Minn. 35, 40, 114 N.W. 251, 253, the plaintiffs saw fit not to be present at the trial or give their testimony, and this court held the trial court did not err when it instructed the jury "that if they found the absence of the plaintiffs and their failure to testify suspicious, it might consider this as militating against them." See also James v. Warter, 156 Minn. 247,194 N.W. 754; 22 C.J. 121, § 57, and cases there cited; to which may be added Teissier v. Stewart, 11 La. App. 167,123 So. 174; Howe v. Howe, 199 Mass. 598, 85 N.E. 945,127 A.S.R. 516; Talich v. Marvel, 115 Neb. 255, 212 N.W. 540. Neither defendant having attempted to offer any proof of the negligence which he asserted the other was guilty of, nor to give the plaintiff an opportunity to call him, he now insists upon judgment notwithstanding the verdict. Neither moved to dismiss when plaintiff rested, nor did he ask the court below nor this court for a new trial. In that situation I think neither defendant is in position to ask this court to assume or suppose the collision due solely to the negligence of the other defendant, of which he alone possesses knowledge but offered no proof, rather than that it was due to the combined negligence of both, as the jury found. I think the evidence *Page 77 and defendants' deliberate absence from the trial warranted the jury in returning the verdict it did.
Aside from the conclusion just stated, I concur with the majority that neither defendant is entitled to what was demanded in the court below and here, viz. judgment notwithstanding the verdict.