Saunders v. Yellow Cab Corporation
| Decision Date | 12 December 1930 |
| Docket Number | No. 28111.,28111. |
| Citation | 182 Minn. 62,233 N.W. 599 |
| Parties | SAUNDERS v. YELLOW CAB CORPORATION OF MINNESOTA. |
| Court | Minnesota Supreme Court |
Appeal from District Court, Hennepin County; W. C. Leary, Judge.
Action by Henry J. Saunders against the Yellow Cab Corporation of Minnesota, wherein George W. Buffington, receiver, was substituted as defendant. From an order denying an alternative motion for judgment notwithstanding the verdict or for a new trial, defendant appeals.
Affirmed.
Boutelle, Bowen & Flanagan, of Minneapolis, for appellant.
Hursh & Johnson, of Minneapolis, for respondent.
Defendant appeals from an order denying its alternative motion for judgment notwithstanding the verdict or for a new trial. While Mr. Buffington, as receiver of the Yellow Cab Corporation, has, since the trial, been substituted as defendant, we speak of the corporation as the defendant.
Plaintiff sued to recover damages for personal injuries claimed to have been caused by the negligence of the driver of one of defendant's cabs, and recovered a verdict.
1. The sufficiency of the evidence to sustain the verdict is challenged on two points: First, that it is insufficient to sustain the finding that the driver of the cab was negligent and thereby caused plaintiff's injury; second, that the evidence shows, as a matter of law, that plaintiff was guilty of contributory negligence.
The accident happened at about 7 a. m. on December 24, 1928, on the wide street formed by the joining of Nicollet and Hennepin avenues in Minneapolis, at a point some forty feet northerly of the intersection of said avenues with First street. The morning was somewhat foggy, and daylight had not fully arrived. The street was wet and slushy, the street lights were burning, and street cars and many automobiles had their headlights on. The headlights on defendant's cab were on. There were double street car tracks coming down Hennepin avenue from the south and running northerly, a little west of but near the center of the joined avenues. According to plaintiff's testimony, which the jury had the right to accept, he was walking diagonally across the joined avenues in a northwesterly direction from the northeast corner of Nicollet avenue and First street. He was not on any crosswalk. When he came to the easterly street car track, a street car coming from the south on that track was close at hand, and he stopped some three or four feet from the track to permit it to pass; and, while there standing and just as the street car had about passed, he was struck and knocked down by defendant's cab. He was looking to the north or northwest, and did not see the cab until it was upon him. He heard the cab driver sound the horn, but the cab was then so close that he could not get out of its way. The cab driver to some extent corroborates plaintiff as to the nearness of the cab when the horn was sounded by testifying that he did not see the plaintiff until he was within eight or ten feet of the cab. There is testimony that the tracks of the cab indicated that it had skidded forward for some distance.
2. Generally, where a pedestrian is run into and injured by an automobile upon a public street or highway, the issues of the negligence of the driver and the contributory negligence of the person injured are questions of fact for the jury. Particular facts and circumstances, conclusively shown, may make one or both issues questions of law for the court. Arseneau v. Sweet, 106 Minn. 257 119 N. W. 46; Wendt v. Bowman & Libby, 126 Minn. 509, 148 N. W. 568; Smith v. Bruce, 131 Minn. 51, 154 N. W. 659; Hade v. Simmons, 132 Minn. 344, 157 N. W. 506; Powers v. Wilson, 138 Minn. 407, 165 N. W. 231; Roberts v. Ring, 143 Minn. 151, 173 N. W. 437; Offerman v. Yellow Cab Co., 144 Minn. 478, 175 N. W. 537; Gibson v. Gray Motor Co., 147 Minn. 134, 179 N. W. 729; Shearer v. Dewees, 151 Minn. 380, 186 N. W. 793; Stoneman v. Washburn-Crosby Co., 153 Minn. 331, 190 N. W. 605; Quinn v. Heidman, 157 Minn. 129, 195 N. W. 774; Flaaten v. Lyons, 157 Minn. 362, 196 N. W. 478; Bowden v. Red Top Cab Co., 161 Minn. 528, 201 N. W. 632; Meyers v. Swanson, 163 Minn. 508, 203 N. W. 624; Pollock v. McCormick, 169 Minn. 55, 210 N. W. 630; Anderson v. Duban, 170 Minn. 155, 212 N. W. 180.
3. The undisputed fact that plaintiff was crossing the street in the middle of the block, or at a place not on a crossing or crosswalk intended for pedestrians, did not absolve the cab driver from his duty to exercise ordinary care. Primock v. Goldenberg, 161 Minn. 160, 200 N. W. 920, 37 A. L. R. 484; Carlson v. Martoccio Co., 179 Minn. 332, 229 N. W. 341. The fact that plaintiff was on a part of the street where it was the duty of pedestrians to yield the right of way to automobiles, under Mason's Minn. Statutes 1927, § 2720-18 (c), did not make plaintiff guilty of contributory negligence as a matter of law. Day v. Duluth Street Ry. Co., 121 Minn. 445, 141 N. W. 795; Schaar v Conforth, 128 Minn. 460, 151 N. W. 275; Heiden v. Minneapolis Street Ry. Co., 154 Minn. 102, 191 N. W. 254; Tobisch v. Villaume, 164 Minn. 126, 204 N. W. 568; Dohm v. Cardozo, 165 Minn. 193, 206 N. W. 377; Carlson v. Martoccio Co., supra. Whether plaintiff was negligent in failing to watch for approaching cars was for the jury.
We find...
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