The evidence in this case required the trial court to submit the issue of "wilful and wanton negligence" to the jury. The evidence justified findings that the boy was in a position of peril, that the defendant Arnold knew that he was in that position, that he realized the necessity for taking action to avoid injuring the boy, and that he failed to take action which would have avoided the injury. The testimony shows that the boy was partly in the alley, in a position in which he was in front of and would be hit by the approaching automobile, when the driver first saw him. The boy was then in a position of peril. Mrs. Roalkvam testified that the front wheel of the boy's bicycle was in the alley when she heard the screeches of the automobile brakes. Mr. Fry testified that when the truck *Page 185 was behind the garage he heard a loud screeching sound and that "this milk truck was putting on the brakes pretty solidly." Arnold was then, according to their testimony, behind the garage and on the north (his left-hand) side of the alley. He was going directly toward the boy. Miss Schleh testified that immediately after the accident she saw tire marks on the pavement on the north side of the alley, the nearest being about one or two feet from the garage, and the other opposite it about the width of an automobile, showing that Arnold applied the brakes at that place. If Arnold's testimony as to speed may be accepted, he was then going 17 or 18 miles per hour, on a slightly upward grade. The evidence of defendants' own expert, Antonson, is that tests made on macadam and asphalt roads showed that the truck could be stopped in a total distance of 30 feet when going 20 miles per hour. He also stated that the truck could be stopped in a shorter distance on concrete. This alley is paved with concrete. Antonson stated that of the 30 feet, 15 feet are consumed in the reaction of the driver in setting the brakes and the other 15 feet in actually stopping the truck. Here the distance traveled during Arnold's reaction and his setting of the brakes occurred at some point west of the garage and was complete when he set the brakes behind the garage so as to make the marks on the pavement in the alley, and the screeches of the brakes heard by Mrs. Roalkvam. According to Antonson, Arnold could have stopped within 15 feet from that point under less favorable road conditions than there prevailed and when going at a higher rate of speed than Arnold testified he was going. Accepting the test actually made by Antonson, Arnold should have stopped the truck before he hit the boy because the evidence shows that the boy entered the alley 15 feet from the east end of the garage, and Arnold had not only that 15 feet but also some distance behind the garage in which to stop. If allowance be made for the fact that the truck can be stopped on a concrete pavement in a shorter distance than on the roads on which the tests were made, some additional distance should be deducted, thus allowing ample distance to come to a complete stop without hitting the boy. If, in addition to this, the speed be taken as 17 miles per hour, as testified *Page 186 by Arnold, he should have stopped in 12 3/4 feet, thus completely avoiding hitting the boy. The evidence shows that the boy was going in a southwesterly direction, but the description of his course upon the plats indicates that he did not go more than two feet to the west by the time he reached the middle of the alley, a distance of about nine and a half feet. If two feet to the west be allowed because of the course the boy traveled, Arnold would still have had the distance to the east end of the garage, plus 13 feet, in which to stop. This was ample to avoid hitting the boy, even if Arnold had proceeded straight in his course.
The jury might well have found that Arnold knew that the boy was in a position of peril when he applied the brakes behind the garage and realized that he should take affirmative action to avoid running over him with the truck. The jury could find that he first applied the brakes and then released them and went forward, because the evidence shows that the tire marks on the pavement were broken and that the truck had gone 27 or 28 feet east of the garage, in traveling which the truck struck the boy. If Arnold could stop in 12 3/4 feet and avoid hitting the boy, why did he travel more than 27 or 28 feet onward toward the boy and hit him? Why didn't he keep the brakes applied? Why did he not turn to the right when he applied his brakes back of the garage? These are questions which the jury might have considered in passing on the question as to whether Arnold exercised due care to avoid hitting the boy after knowing that he was in a position of peril and knowing that he would run over and injure the boy if he did not stop. The jury might well have found that Arnold could have turned to the right when he realized the boy was in a position of peril. Arnold testified that he turned to the right to such an extent as to get the right-hand wheels of the truck off the pavement, but he did not turn until he hit the boy, which was too late to avoid the collision. If Arnold were on the right-hand side of the alley, as he testifies he was, he could have turned into the vacant lots there without danger to himself and thus avoid the boy. If, on the other hand, Arnold were on the north side of the alley, as plaintiff's witnesses testified, he still had ample time when he was behind the garage to turn to *Page 187 the right at the time he applied the brakes and drive off the pavement, thus avoiding the boy. He testified that the truck would have turned instantly had he pulled the steering rod. Thus the jury could find that after discovering the boy's position of peril Arnold failed to exercise reasonable means to avoid the collision.
This court is not justified in deciding the facts. It finds that Arnold immediately "took action to prevent the collision." The question is not whether Arnold took action to avoid the accident, but whether after the discovery of the child in a position of peril he failed to exercise ordinary or reasonable care to prevent injury to the child. Arnold's conduct is to be measured by the standard of reasonable care. The inferences to be drawn from the testimony were for the jury and not for this court. Questions of negligence and contributory negligence upon disputed evidence are for the jury. Rimmer v. Cohen, 172 Minn. 134,215 N.W. 198; Hollander v. Dietrich, 181 Minn. 376,232 N.W. 630; Peterson v. Miller, 182 Minn. 532, 235 N.W. 15; Harkness v. Zube, 182 Minn. 594, 235 N.W. 281; Eckhardt v. Hanson, 196 Minn. 270, 264 N.W. 776, 107 A.L.R. 1; 5 Am.Jur. p. 877, § 673.
That an automobile driver can run down a child in plain sight of him without liability is not the law. In Weasler v. Murphy T. S. Co. 167 Minn. 211, 213, 208 N.W. 657, 658, Mr. Justice Stone said:
"If there is one cause which, more than any other, should lead to the exercise of a high degree of care by an automobile driver, it is the presence of children in such a situation that any combination of action on their part and his can result in injury to them."
The rule is well settled in this state, as it is elsewhere, that a plaintiff may recover notwithstanding his contributory negligence if the defendant might, by the exercise of ordinary or reasonable care on his part after discovering the plaintiff in a position of peril, have avoided the accident. 4 Dunnell, Minn. Dig. (2 ed. Supps. 1932, 1934) §§ 7017, 7036. The reason for this rule as given by Mr. Justice Mitchell in Fonda v. St. Paul City Ry. Co. 71 Minn. 438, 451, 74 N.W. 166, 170,70 A.S.R. 341, is that in such cases the "wilful and intentional acts of the defendant are deemed the *Page 188 sole proximate cause, and the negligence of the plaintiff only the remote cause, or, more properly speaking, the mere occasion, of the injury." He states that the same is true where, after discovery of plaintiff's negligence in time to avoid injury to him, the defendant neglects to exercise due care to do so. To same effect: Hinkle v. M. A. C. R. Ry. Co.162 Minn. 112, 202 N.W. 340, 41 A.L.R. 1377. In Rawitzer v. St. Paul City Ry. Co. 93 Minn. 84, 87, 100 N.W. 664, 666, this court said: "This principle is founded upon the dictates of humanity, and is supported by great weight of authority." The rule has been applied in the following situations: A man on a streetcar track, Fonda v. St. Paul City Ry. Co. supra; a boy on a bicycle, Rawitzer v. St. Paul City Ry. Co. supra; a man on a railroad track, Evarts v. St. P. M. M. Ry. Co. 56 Minn. 141,57 N.W. 459, 22 L.R.A. 663, 45 A.S.R. 460; Havel v. M. St. L. R. Co. 120 Minn. 195, 139 N.W. 137, 138; a six-year old girl on a railroad track, Sloniker v. G. N. Ry. Co. 76 Minn. 306,79 N.W. 168; a boy on a railroad track, Palon v. G. N. Ry. Co. 129 Minn. 101, 151 N.W. 894; a man in an automobile, Mueller v. Dewey, 159 Minn. 173, 198 N.W. 428; a man on a bicycle, Pettygrove v. Hecht, 159 Minn. 260, 198 N.W. 809. Under these decisions, it was plainly for the jury to determine whether or not the boy was in plain sight of the truck, whether Arnold knew that the boy was in that position, whether there was time to avoid the injury, and whether or not he exercised due care to avoid the injury.
The jury was not bound, nor are we, to accept Arnold's testimony as true in all particulars. This would be so even if his testimony were not directly contradicted. The rule is that the fact that there is no conflict in the testimony does not make the question one for the court instead of the jury if the testimony is for any cause inconclusive in its nature. The evidence is inconclusive where different conclusions may reasonably be drawn from it and its credibility is doubtful. Jensen v. Fischer, 134 Minn. 366, 159 N.W. 827. Arnold says he was driving on the south (his right-hand) side of the alley. His testimony is that when he first saw the boy the boy was 12 feet ahead of him and just coming into the alley. The only testimony as to the speed of the boy is that he was going about *Page 189 5 miles per hour. Arnold's own testimony is that the truck was going from 17 to 18 miles per hour. Arnold claims that he hit the boy along the center line of the alley. The distance from the point where the boy entered the alley to the center of the alley is 9 feet 10 inches, and making allowance for the fact that the front wheel of the bicycle was in the alley when Arnold first saw him, the boy would have to travel at least 8 feet from the point where Arnold saw him to the point of collision during the time Arnold traveled the distance that he stated. During the time the boy could travel the 8 feet at 5 miles per hour, Arnold would have traveled approximately 27 1/2 feet, and it is clear that if his testimony is true he would not have hit the boy at all. That the testimony is not true might well have been found by the jury. Furthermore, Arnold does not deny nor explain the presence of the tire marks on the pavement as testified to by Miss Schleh, or the screeches of his brakes behind the garage, heard by Mrs. Roalkvam. His testimony might have been rejected by the jury under the rule of Jensen v. Fischer, supra. Furthermore, Arnold testified that as he came down the alley, even before he got to the Roalkvam garage, he was looking straight ahead. If he had looked straight ahead he would have seen the boy. Under similar circumstances, following the rule of B. O. R. Co. v. Goodman,275 U.S. 66, 48 S.Ct. 24, 72 L. ed. 167, 56 A.L.R. 645, this court has held that a person may not escape liability for his negligence under circumstances such as these by testimony that he looked at a time and place and did not see an approaching train or automobile in plain view. Under such circumstances, the jury would be justified in finding that the person proceeded in negligent disregard of the dangers of the situation. Chandler v. Buchanan, 173 Minn. 31, 216 N.W. 254; Sorenson v. Sanderson, 176 Minn. 299, 223 N.W. 145; DeHaan v. Wolff, 178 Minn. 426, 227 N.W. 350. In the instant case, Arnold's testimony is that he not only looked but that he continued to look. The fact that he applied the brakes shows that he looked and knew of the dangers in the situation in which he was driving the truck. Under the rule of the cases cited, he could be found to have disregarded the obvious peril in which he saw the boy. The rule should apply to *Page 190 defendants in holding them liable for their negligence as well as to plaintiffs in holding them guilty of contributory negligence. From these facts the jury could find that Arnold saw the boy in a position of peril in time to avoid striking him, continued in his course, and ran over him.
In the case of Havel v. M. St. L. R. Co. supra, the defendant contended that the engineer did not see the men on the railroad track ahead of him. This contention is like Arnold's, that he did not see the boy even though he was looking straight at the place where the boy was and that he did not see the boy until he rode in front of him. In the Havel case it appeared that Havel and another were walking upon the defendant's railroad tracks from Hopkins to St. Louis Park, on their way to work, and were struck by a train when they had reached a point about midway between the two towns. The engineer of the train testified that the train ran from 25 to 28 miles per hour; that a bell was ringing and that he was keeping a lookout straight ahead along the track, which at that point was straight for a mile; and that he did not see either of the two men. It was contended that this testimony showed that the engineer did not know that the men were in a position of peril and that consequently the rule did not apply. It was claimed in that case that the testimony of the engineer was conclusive, as it is claimed that the testimony of Arnold is conclusive here, but the court held to the contrary. Mr. Chief Justice Start in that case said:
"If, therefore, the evidence in this case was practically conclusive that the defendant's engineer, in charge of the locomotive hauling the train which struck and killed the men, did not discover them on the track in time to avoid striking them by the exercise of ordinary care, the defendant was entitled to a directed verdict. The engineer testified that the train was running from 25 to 28 miles an hour and the automatic bell was ringing; that he was at his post and keeping a lookout along the track, which was straight for a mile; that it was dark, and he could not see a man on the track more than 75 to 100 feet ahead; that he saw no one at any *Page 191 time on the track, and did not know or learn that his engine had struck any one until he reached Minneapolis. There was no direct contradiction of his testimony that he saw no one at any time on the tracks. If the jury were bound to accept his testimony as true in its entirety, the defendant was entitled to a directed verdict. There could not, from the very nature of the case, have been any direct contradiction of the engineer's testimony that he did not see any one on the tracks; but thejury were not bound to accept it as true, if othercircumstances in evidence furnished a reasonable basis forconcluding that it was not true. Lang v. Ferrant, 55 Minn. 415,57 N.W. 140." (Italics supplied.)
To the same effect, Rawitzer v. St. Paul City Ry. Co.; Sloniker v. G. N. Ry. Co. and other cases, supra.
It seems to me that the marks on the pavement and other physical facts discredit Arnold. Mr. Fry testified that Arnold turned the truck from the north to the south side of the pavement. The police officers testified that there were skid marks on the pavement going toward the rear wheels of the truck where it stood after the accident, showing that it had taken the course described by Mr. Fry. The court below properly submitted this issue to the jury, and the verdict of the jury is amply sustained by the evidence. There should be an affirmance.