Abar v. Ramsey Motor Service
| Decision Date | 13 December 1935 |
| Docket Number | No. 30470.,30470. |
| Citation | 263 N.W. 917,195 Minn. 597 |
| Parties | ABAR v. RAMSEY MOTOR SERVICE, INC. |
| Court | Minnesota Supreme Court |
Appeal from District Court, Hennepin County; E.A. Montgomery, Judge.
Actions by Jennie Abar and by Fred Abar against the Ramsey Motor Service, Inc. The actions were tried as one. From order denying their motion for new trial, plaintiffs appeal.
Affirmed.
B.W. Wilder and Earl D. Mora, both of Minneapolis, for appellants.
F.H. Durham, P. Benson, and Durham & Swanson, all of Minneapolis, for respondent.
The plaintiff Jennie Abar sued defendant for damages resulting from a fall upon a sidewalk in front of defendant's premises alleged to have become dangerous to travelers thereon through defendant's negligent failure to remove the ice and snow therefrom. The plaintiff Fred Abar sued for consequential damages sustained by him on account of his wife's fall. The actions were tried as one. It will not be necessary to refer to plaintiff Fred Abar's suit, for if his wife cannot recover, neither can he.
The evidence showed that in the city of Minneapolis on January 21, 1934, at 9:30 p. m., as plaintiff, her husband, and an 8 year old child were walking on the sidewalk on the south side of Twelfth street from La Salle toward Yale Place, plaintiff fell where a driveway passes over the sidewalk into defendant's motor service building. The driveway is even or level with the sidewalk. There were lumps or ridges of ice or packed snow estimated to be of the depth of 6 inches on the westerly side of the driveway where plaintiff fell. There was testimony to the effect that the rest of the sidewalk was practically free from ice and snow; and also that on this driveway, as automobiles passed over it into defendant's place of business not only was the snow packed down, but ice would fall off the cars onto the walk. Holding that the case-made was ruled by McDonough v. City of St. Paul, 179 Minn. 553, 230 N.W. 89, the court directed a verdict for defendant. Plaintiff appeals from the order denying her motion for a new trial.
After the jury was impaneled and before the introduction of any testimony, plaintiff moved to amend the complaint by alleging two ordinances requiring the owners or occupants of premises abutting sidewalks within the fire limits to keep the same free from ice and snow; and that Twelfth street, between the cross streets mentioned, was within the fire limits. The denial of the motion is assigned as error. Whether a litigant at the opening of the trial should be permitted to amend his pleading is left to the discretion of the trial court. We cannot hold that there was any abuse of that discretion in the instant case. Furthermore, since Noonan v. City of Stillwater, 33 Minn. 198, 22 N.W. 444, 53 Am.Rep. 23, it has been settled that an ordinance or a charter provision cannot shift the responsibility of a city for the condition of its streets upon the abutting property or its owner or occupant. Burke v. O'Neil, 192 Minn. 492, 257 N.W. 81.
There are many assignments of error based on rulings excluding the opinion of the witnesses that from the appearance of the hummocks there had been an attempt by pick or scraper to remove the ice from the westerly part of the driveway; and to connect this condition with defendant it was proven that it had tools for doing such work, and that employees had orders to keep the sidewalk free of snow and ice. There are many instances in the books where a lay witness has been permitted to give his opinion as to what had caused the existing condition instead of limiting him to describing what he actually saw. Words may fail to convey to the jury the actual situation as the witness saw it, but by expressing his opinion or conclusion as to the cause of the situation the jury may be able to comprehend what he saw. The following cases are illustrative of the rule: State v. Lucy, 41 Minn. 60, 42 N.W. 697, 698; Patterson v. Blatti, 133 Minn. 23, 157 N.W. 717, L.R.A.1916E, 896, Ann.Cas. 1918D, 63; Olson v. Purity Baking Co., 185 Minn. 571, 242 N.W 283; Dun. Minn. Dig. § 3315; Wigmore on Evidence § 1924. But the admission of such evidence is left to the discretion of the trial court and not subject to review on appeal. Hylaman v. Midland Ins. Co., 136 Minn. 132, 161 N.W. 385.
Plaintiff assigns error on the refusal to open the case after she rested to take the testimony of two witnesses, Bostrom and Nelson, to prove that there had been an attempt to remove the accumulations of snow and ice, and that quantities adjacent to removed ice and snow were permitted to remain, and that they could determine that fact from examination of marks made by the instruments used in cleaning the walk. The two witnesses had testified very fully as to what they observed soon after plaintiff fell; but their conclusions that there had been an attempt to clean off the ice, and the attempt abandoned, were excluded. This testimony of Bostrom went in without objection:
A. Oh, it had been there some time.
To the witness' statement, "looked like they had used one of them choppers and quit," an objection that it was speculative was sustained. Nelson's testimony was substantially the same. There was no abuse of discretion in refusing to open the case for the purpose of receiving the proffered testimony from these two witnesses. They had testified as fully as they properly could, except as to conjectures and opinions. Furthermore, the...
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