I am unable to assent to the views of the majority.
1. The verdict was not right as a matter of law. The evidence presented a fact question as to whether Pappas, Jr., was negligent. Likewise, it was a fact question whether the collision was caused solely by Hall's negligence, consisting of his violations of M.S.A. 169.50 in parking his autotruck at night on the pavement without a lighted "rear lamp" plainly visible from a distance 500 feet to the rear, and of § 169.75 in so parking his autotruck without "immediately" setting out flares 100 feet to the rear, 100 feet in advance, and one on the "roadway" side thereof. It was for the trier of fact, and not for this court on appeal, to determine these questions. *Page 102
The so-called taillight was not on the back or hindmost part of the autotruck, where it should have been, but 51/2 feet forward from the rear thereof and about 6 or 8 inches under the body. The body was 11 feet long. Hence the light was placed midway between the front and rear thereof. There was no evidence that the taillight was visible 500 feet down the road to the rear of the autotruck. The evidence permitted an inference that it was not so visible. The autotruck stood diagonally on the pavement with the right front part thereof at least a couple of feet farther from the pavement than the rear. The consequence was that a motorist approaching from the rear did not have a view of the autotruck from the rear, but from an angle. The witnesses who gathered after the accident and viewed the autotruck from behind it saw the taillight lit, but one of them whose place of view was not disclosed did not see the taillight at all. Pappas, Jr., was driving a Plymouth sedan. He sat higher than the so-called taillight. The projection of the body of the autotruck behind the taillight for a distance of 51/2 feet might have and probably did cut off his view. Furthermore, the frame on the right side of the projected body also might have done that very thing and probably did. Undoubtedly, when a motorist approaching from the rear got close to the standing autotruck he could see the taillight. The evidence here shows that Pappas, Jr., evidently did so when he turned to the left to avoid the standing autotruck and hit "the extreme left corner of the rear" thereof.
If it be assumed that Pappas, Jr., saw the taillight at a sufficient distance to avoid a collision with the standing autotruck, the evidence permits an inference that the positions of the taillight and "clearance" lights might have misled him as to the exact position of the autotruck. The rearmost clearance lights were located, as was the taillight, 5 1/2 feet forward from the rear end of the autotruck, or midway between the front and rear of the autotruck. Thus, there was a circle of lights 51/2 feet forward from the projecting rear left corner. It is undisputed that the Pappas car hit the extreme left rear corner; hence it is clear that, if the rear of the autotruck was where the circle of lights might have misled him to believe it *Page 103 was, Pappas would have cleared the autotruck by at least several feet. In that view of the evidence, the rule of Orrvar v. Morgan, 189 Minn. 306, 249 N.W. 42, has no application. Where the circumstances are such as to mislead the driver of the colliding vehicle, obscure his view, or distract him, we have held that the cited case has no application and that the question whether the driver of the colliding vehicle was negligent is one of fact. Johnson v. Kutches, 205 Minn. 383,386, 285 N.W. 881, 882; Twa v. Northland Greyhound Lines, Inc.201 Minn. 234, 275 N.W. 846; Tully v. Flour City Coal Oil Co. 191 Minn. 84, 253 N.W. 22. So it was here.
It was Hall's plain duty to set out flares "immediately." § 169.75; Brown v. Murphy T. S. Co. 190 Minn. 81,251 N.W. 5. The statute requiring flares to be set out proceeds upon the assumption that a truck standing on a pavement at night with its lights lit is not a sufficient warning to other travelers of the danger its presence creates; that other and additional warning to protect them is necessary; and that putting out flares is necessary to afford such protection. By clear implication, the doctrine of Orrvar v. Morgan, supra, is abrogated by the statute. We have so held, without expressly so stating, in numerous cases holding that failure to set out flares in violation of statute to warn of the presence of a truck standing on a pavement in itself constitutes actionable negligence, even though the truck's lights, front or tail, are lit. Duff v. Bemidji Motor Service Co. 210 Minn. 456,299 N.W. 196; Twa v. Northland Greyhound Lines, Inc. 201 Minn. 234,275 N.W. 846; Johnson v. Sunshine Creamery Co. 200 Minn. 428,274 N.W. 404. In the Duff case we said (210 Minn. 458,299 N.W. 197):
"The failure of defendant's chauffeur to use his flares as required by statute * * * is enough without more to sustain the jury finding of negligence chargeable to defendant."
In the Twa case, holding that Orrvar v. Morgan was not applicable in a case like this, we said (201 Minn. 239,275 N.W. 848):
"* * * To hold that a motorist is under an imperative duty to discover at his peril and at all events every substantial obstruction *Page 104 to travel within the range of illumination of his headlights would constitute an avoidance of the penalties of the highway traffic act imposed on those who violate its provisions."
Here, after discovering that he could not proceed without changing a tire, Hall stopped his autotruck partly on the pavement and partly on the shoulder. Instead of setting out flares "immediately" as the statute required, he went ahead to reconnoiter to determine whether it was safe to get entirely onto the shoulder. This constituted a violation of the statute and created the dangerous condition which ultimately caused the accident in question. See, Brown v. Murphy T. S. Co.190 Minn. 81, 251 N.W. 5, supra.
Thus, the question whether Pappas, Jr., was negligent was in any view of the evidence a fact question.
2. The vice of the result reached below and affirmed here is that the court's instructions not only permitted the jury to find Pappas, Jr., negligent upon several grounds, permissible under the evidence, that he failed to exercise due care under the circumstances, but also upon the ground, unpermissible under the evidence, that the jury might under the statutes (§§ 169.14, subd. 2[3], and 169.96) presume negligence if Pappas, Jr., drove at a speed in excess of 50 miles per hour. There was no direct evidence as to his speed. For lack thereof, reliance is placed upon circumstances consisting of physical facts, such as the facts that the Pappas car tore loose a plank on the Hall autotruck; that it proceeded into the ditch and back onto the pavement; that it turned over, and that it came to rest upright about 150 to 175 feet ahead of the autotruck. Physical facts of an automobile accident may be evidence of negligence, but they are not evidence of any particular rate of speed of the vehicles involved in the accident. The law attaches no certain conclusion to them. Beckman v. Schroeder,224 Minn. 370, 28 N.W.2d 629; Romann v. Bender, 190 Minn. 419,252 N.W. 80; 10 Blashfield, Cyc. of Auto. Law and Practice (Perm. ed.) § 6560. See, Grengs v. Erickson, 225 Minn. 153,29 N.W.2d 881; Caulfield v. McGivern, 196 Minn. 339,265 N.W. 24. Hence, it follows that there was no basis here for an inference of negligence based on speed in excess of 50 miles per hour. For *Page 105 reasons to be presently stated, giving the instruction permitting the jury to base a finding of negligence on such an inference constituted reversible error.
3. An instruction being not only an exposition of the principles of law to be applied to the facts by the jury in rendering a verdict so as to determine the rights of the parties according to the law and the facts, but also a decision by the trial judge that the principles of law stated in the instruction shall be so applied, it is elementary that the parties are entitled, as a matter of fundamental right, to have controlling propositions of law correctly stated in the instructions. Hubred v. Wagner, 217 Minn. 129,14 N.W.2d 115; Moll v. Bester, 177 Minn. 420,225 N.W. 393; 6 Dunnell, Dig. Supp. § 9798. An instruction that a jury may base its verdict upon certain facts amounts to a declaration of law that the jury may find those facts to exist. Accordingly, it is error to submit to the jury as a basis for recovery a ground for which there is no evidentiary support. Where the instructions submit several grounds as bases for recovery, for some of which there is evidentiary support and for one or more of which there is none, it is none the less error, and, if the verdict is for plaintiff, it must be set aside, unless he is entitled as a matter of law to recover upon some ground other than the one erroneously submitted. Ohrmann v. C. N.W. Ry. Co. 223 Minn. 580, 27 N.W.2d 806 (speed of train); Weber v. McCarthy, 214 Minn. 76, 7 N.W.2d 681 (speed of automobile); 5 Dunnell, Dig. Supp. § 7174. There is no way of ascertaining upon which ground a jury based its verdict, and, because that is true, the verdict in a case such as this might be based upon a ground on which the defendant is not legally liable. Ohrmann v. C. N.W. Ry. Co. supra. See, McManus v. Nichols-Chisholm Lbr. Co. 105 Minn. 144, 117 N.W. 223 (evidence considered by jury).
Here, the jury might have found for defendants as to all grounds of negligence claimed by plaintiff except the one of statutory presumption of negligence based on speed in excess of 50 miles per hour. If the jury so found, the verdict as a matter of law should have been for defendants, for the plain reason that the finding entitled defendants *Page 106 to exoneration from liability upon the only grounds upon which it might have been based. A verdict for plaintiff based on an inference of negligence from speed in excess of 50 miles per hour would have been contrary to the evidence and unauthorized by law. Since there is no way of ascertaining whether the verdict was based upon such excessive speed or some other ground or grounds and since plaintiff was not entitled as a matter of law to recover upon any ground of negligence charged, the verdict should be set aside under the rule.
MR. JUSTICE KNUTSON, not having been a member of the court at the time of the argument, took no part in the consideration or decision of this case.