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

• Decision Date: 18 November 1904
• Docket Number: Nos. 14,018 - (53).,s. 14,018 - (53).
• Citation: 93 Minn. 314
• Parties: ALGER, SMITH & COMPANY v. DULUTH-SUPERIOR TRACTION COMPANY.<SMALL><SUP>1</SUP></SMALL>
• Court: Minnesota Supreme Court

Page 314

93 Minn. 314

ALGER, SMITH & COMPANY v. DULUTH-SUPERIOR TRACTION COMPANY.¹

Nos. 14,018 - (53).

Supreme Court of Minnesota.

November 18, 1904.

Appeal by plaintiff from an order of the district court for St. Louis county, Ensign, Cant and Dibell, JJ., reversing an order of the municipal court of Duluth and directing a new trial. Affirmed.

L. C. Harris, for appellant.

Thos. S. Wood, for respondent.

START, C. J.

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 wilful 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 wilful 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 wilful 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 wilful negligence in the premises?

There is a well-defined distinction between ordinary negligence and wilful or wanton negligence. Ordinary negligence is not actionable if the negligence of the injured party directly contributed to the result, but liability is incurred by wilful negligence irrespective of such contributory negligence. Wilful negligence is not simply greater negligence than that of the injured party, nor does it necessarily include the element of malice or an actual intent to injure another. But it is a reckless disregard of the safety of the person or...