Alger, Smith & Co. v. Duluth-Superior Traction Co.

Decision Date18 November 1904
Citation101 N.W. 298,93 Minn. 314
CourtMinnesota Supreme Court


Appeal from District Court, St. Louis County; J. D. Ensign, Wm. A. Cant, and Homer D. Dibell, Judges.

Action by Alger, Smith & Co. against the Duluth-Superior Traction Company. Verdict for plaintiff. Motion for judgment notwithstanding the verdict or for new trial was overruled by the municipal court, and on appeal the order was reversed by the district court, and plaintiff appeals. Affirmed.

Syllabus by the Court

1. Willful or wanton negligence, whereby liability is incurred irrespective of the contributory negligence of the party injured, is a reckless disregard of the safety of the person or property of another, by failing, after discovering the peril, to exercise ordinary care to prevent the impending injury.

2. The trial court erred in submitting the question of the defendant's willful negligence to the jury in this case. L. C. Harris, for appellant.

Thos. S. Wood, for respondent.


This action was brought in the municipal court of the city of Duluth to recover damages for the loss of plaintiff's horse, caused by the alleged negligence of the defendant in operating its street car. Trial by jury, and verdict for $75. The defendant made a motion for judgment notwithstanding the verdict or for a new trial, and appealed to the district court of the county of St. Louis from an order denying its motion. The district court made its order reversing that of the municipal court and granting the defendant's motion for a new trial. The plaintiff appealed from the order. The municipal court submitted to the jury the question of the defendant's willful negligence, and instructed them, in effect, that, if plaintiff's negligence proximately contributed to its loss, it could not recover, no matter how negligent the defendant may have been, unless its negligence was such as to imply a willful intention to inflict the injury, and further that the plaintiff could recover, notwithstanding its own negligence, if the defendant, by the exercise of ordinary care after ascertaining the danger to plaintiff's property, might have avoided the injury. The district court granted a new trial on the ground that the record discloses no evidence to justify the submission of the question of willful negligence to the jury. The sole question then for our decision is this: Is there any evidence in the case which would fairly sustain a finding by a jury that the defendant was guilty of willful negligence in the premises?

There is a well-defined distinction between ordinary negligence and willful or wanton negligence. Ordinary...

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25 cases
  • Richardson v. Grezeszak
    • United States
    • Michigan Supreme Court
    • November 25, 1959
    ... ...         Smith & Brooker, Bay City, for defendants and appellees ... 94, 13 N.W. 373; Vought v. Michigan United Traction Co., 194 Mich. 343, 160 N.W. 631; Wexel v. Grand Rapids & I. Railway Co., ... Of like import is Alger, Smith & Company v. Duluth-Superior Traction Company, 93 Minn. 314, 101 ... ...
  • Welch v. Fargo & Moorhead Street Railway Co.
    • United States
    • North Dakota Supreme Court
    • February 1, 1913
    ... ... R. Co. 48 La.Ann. 1, ... 18 So. 695; Md.--Baltimore Traction Co. v. Helms, 84 ... Md. 515, 36 L.R.A. 215, 36 A. 119, 1 Am. Neg. Rep ... v ... Cobb, 90 C. C. A. 459, 164 F. 43, and cases cited; ... Alger S. & Co. v. Duluth-Superior Traction Co. 93 ... Minn. 314, 101 N.W. 298, ... Vansickle, 74 Ind. 529, 39 Am. Rep. 101; ... Whitcomb v. Smith, 123 Ind. 329, 24 N.E. 109; ... Railsback v. Railsback, 12 Ind.App ... ...
  • Peterson v. Minneapolis St. Ry. Co.
    • United States
    • Minnesota Supreme Court
    • May 16, 1952
    ... ... Alger, Smith & Co. v. Duluth-Superior Traction Co., 93 Minn. 314, 101 N.W. 298 ... ...
  • Denver City Tramway Co. v. Cobb
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • September 5, 1908
    ... ... negligence. Chicago Great Western Ry. Co. v. Smith, ... 73 C.C.A. 164, 141 F. 930; Saltman v. Boston Elevated Ry ... Co., ... Co., 71 Minn. 438, 451, 74 N.W. 166, 70 ... Am.St.Rep. 341; Alger, Smith & Co. v. Duluth, etc., ... Co., 93 Minn. 314, 101 N.W. 298; ... ...
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