Wawin Coal Co. v. Orr

• Decision Date: 06 May 1929
• Docket Number: No. 8292.,8292.
• Citation: 33 F.2d 27
• Parties: WAWIN COAL CO. v. ORR.
• Court: U.S. Court of Appeals — Eighth Circuit

33 F.2d 27 (1929)

WAWIN COAL CO. v. ORR.

No. 8292.

Circuit Court of Appeals, Eighth Circuit.

May 6, 1929.

George Hoke and Tracy J. Peycke, both of Minneapolis, Minn., for appellant.

Donald M. Davis, Bergman Richards, and Snyder, Gale & Richards, all of Minneapolis, Minn., for appellee.

Before STONE, LEWIS, and COTTERAL, Circuit Judges.

COTTERAL, Circuit Judge.

Robert E. Orr was injured on Marquette avenue in Minneapolis, Minn., when on alighting from the rear exit of a north-bound street car which had stopped and opened its gates to discharge and receive passengers he slipped and fell on the steps or street, and his foot was run over by a truck of the Wawin Coal Company, which had followed the car and was passing the place of the injury. Immediately ahead of this car was another car on the avenue at its intersection with Eighth street. There were posts creating a safety zone opposite the forward car and extending only a part of the way alongside of the car in which Orr was a passenger or not entirely back to the front of that car. Orr sued both the street car company and the coal company to recover damages for his injury. At the close of his evidence, a verdict was directed for the street car company. The trial proceeded against the coal company resulting in a verdict in Orr's favor, and, judgment being rendered thereon, the coal company brings this appeal, assigning as error the refusal of the trial court to direct a verdict for the company and these portions of the charge to the jury:

"The claim on the part of the plaintiff is that the driver was negligent — the driver of the truck was negligent in two or more ways, First he was negligent, so the plaintiff says, in driving where he did at all, at the time and place in question, the claim being he should have stopped some distance back of the street-car — that he should have anticipated people were likely to alight therefrom, and that by driving where he did at the time that he did, he did not have due regard for the rights of those who might be alighting from the car."

"If the street-car was not stopped at one of these safety zones, if the safety zone was really nearly a car length ahead, and if the driver of the truck should have known that there was no safety there, he should, of course, have had in mind whether or not, from the location of the car, it was to be apprehended that passengers were likely to alight therefrom, and if he should have anticipated such alighting, it was then his duty to have stopped his truck some distance, 10 feet, I believe, to the rear of the street-car, so that those having occasion to alight, might do so in safety."

"The plaintiff claims, too, that the driver was negligent in not giving warning of his approach by the sounding of his horn — the horn of his truck, and the claim is, also, that he was driving at too high rate of speed at that particular time and place and under those circumstances."

The first of these excerpts from the charge is a mere statement of plaintiff's claim to a recovery, and there was no exception to it, but we consider it in its relation to the next instruction assigned as error, which presents a question respecting the construction and application of section 19, chapter 416, Laws of Minnesota, 1925. That section provides:

"Motor vehicles to pass to right of street cars. — The operator of a motor vehicle, when passing a car of a street railway running in the same direction, shall pass only to the right thereof, and in approaching a car of a street railway which has been stopped or is about to stop to allow passengers to alight or embark, he shall bring said vehicle to a full stop not less than ten feet behind said street car and shall remain so stopped until all gates of said street car are closed; provided that such operator may pass a standing street car where a safety zone is established by the proper authorities by slowing down and proceeding cautiously."

At the outset we note that the trial court had charged the jury generally that it was the duty of the truck driver, for whose acts concededly the coal company was responsible, to exercise reasonable care to avoid injury to others; that if he failed to do so under the circumstances he...