Anderson v. Minneapolis St. Ry. Co.

• Decision Date: 10 February 1890
• Citation: 42 Minn. 490,44 N.W. 518
• Parties: ANDERSON v MINNEAPOLIS ST. RY. CO.
• Court: Minnesota Supreme Court

42 Minn. 490

44 N.W. 518

ANDERSONvMINNEAPOLIS ST. RY. CO.

Supreme Court of Minnesota.

Feb. 10, 1890.

(Syllabus by the Court.)

1. The driver of a street-car should be in a place and in a condition to exercise a reasonable degree of care and vigilance in watching and observing the street ahead of him, so as to prevent collisions, and avoid injury to pedestrians, children as well as adults, who may be upon the public way.

2. A driver may have been performing his duty to his employer, such as making change for a passenger, at a time when he should have been watchful of the rights and careful of the safety of others; but such fact will not relieve the employer from a charge of negligence, in a case where it appears that, had not the driver's attention been engrossed in the duty imposed by his employer, he could have avoided the accident. The duty which a car company and its employes owe to the public is paramount to that which they owe each other.

Appeal from district court, Hennepin county; HOOKER, Judge.

Pierce, Arctander & Nickell, for appellant.

M. B. Koon, for respondent.

COLLINS, J.

This is an action to recover damages for the death of plaintiff's intestate, caused, as alleged, by defendant's negligence. When, upon the trial, all of the testimony had been submitted, the court directed and the jury returned a verdict for defendant. The appeal is from an order refusing a new trial.

Defendant is a corporation engaged in operating lines of horse-cars in the streets of Minneapolis. The deceased was plaintiff's son, aged about three years at the time of his death. The injuries from which he died were received upon one Sunday afternoon on Cedar avenue, some 180 feet from the plaintiff's dwelling. It does not conclusively appear from the case, nor do we understand the respondent to claim it to so appear, that the parents had failed to exercise due care in regard to the child, or that it was on the avenue through their negligence at the time of the accident. One of defendant's cars, drawn by a pair of mules, was on the avenue, between Franklin avenue and Twenty-Second street, going south. The car was well filled with passengers, the seating capacity being about 30, and some stood upon the rear platform. It was not the custom of defendant to employ conductors upon this line, and there was none upon the car in question. The driver, therefore, had exclusive charge, and, in addition to looking after his team, had to observe his passengers, see that they got on and off, open and shut the door for them, see that each person paid his fare and promptly register the same, to drop the fare as soon as deposited from the upper to the lower compartment of the box, and to make change for the passengers, as occasion required. This was done from a cash-box fastened to the dash of the car, and which, as the driver stood, came a little above his knees. In making change the driver, upon receiving the passenger's money, either from his hand or from the cup in the door,-but always from the rear,-had to examine it, open his cash-box, place the money in its proper place, select an envelope containing the requisite amount, close his box, and deliver the change to the passenger. This must have taken some little time, during which his attention was diverted from the business of driving, and his eyes necessarily taken off from his team, as well as from the street along which he was traveling. It could not have been done in an instant. He had to look to the rear twice, and to carefully observe his cash-box, which was upon the top of a low dash, and but a few inches from his knees. Just prior to the accident...