Aubin v. Duluth St. Ry. Co.
| Decision Date | 17 December 1926 |
| Docket Number | No. 25536.,25536. |
| Citation | 169 Minn. 342,211 N.W. 580 |
| Parties | AUBIN v. DULUTH ST. RY. CO. et al. |
| Court | Minnesota Supreme Court |
Appeal from District Court, St. Louis County; C. R. Magney, Judge.
Action by Janet V. Aubin, administratrix of the estate of Oscar A. Aubin, deceased, against the Duluth Street Railway Company and others. Verdict for plaintiff, and defendants appeal from an order denying their alternative motion for judgment non obstante or for a new trial. Reversed.
G. A. E. Finlayson, John B. Richards, and H. E. Weinberg, all of Duluth, for appellants.
Lewis & Hunt, of Duluth, and Johnson & Holm, of Hibbing, for respondent.
In 1902 a 1,200 foot viaduct was erected over certain railroad tracks which crossed Garfield avenue in Duluth. Double street railway tracks were laid, and a single line of iron trolley poles set 121 feet apart was erected between the two tracks. They were used continually up to the time of the accident on August 14, 1924. The viaduct was 42.5 feet wide. The poles, which were 7 5/8 inches in diameter, were painted white for a distance of 6 feet from the ground. Decedent drove an automobile, in the nighttime, upon the viaduct when two other cars were traveling in the opposite direction. His left front hub touched the first pole, and his car ran into the second, causing his death and damage to the car. Plaintiff was given a verdict for $8,000. Defendants have appealed from an order denying their alternative motion for judgment non obstante or a new trial.
1. Defendants' negligence. The trial court properly determined that the poles were erected and maintained with the authorization and consent of the city. The question of unreasonable obstruction of the street was submitted to the jury. The poles were not lighted; neither was the viaduct. Nor was there any curb, guard rail, or protection of any kind about the poles. The paving was rough near decedent's right, and smoother nearer the center of the street. This tended to bring drivers nearer the poles. During the period these poles were maintained prior to the accident traffic conditions materially changed, and the danger from blindness from automobile headlights developed and magnified. It would have been both practicable and inexpensive to move the poles to the curb. The center pole type of construction had become antiquated. Defendants knew these things. The poles were painted in the hope of making the street safer. Obviously there was some risk. Regardless of degree, such risk was unnecessary. The permissive authority of the city could not justify the street railway company in locating the poles so as to become an obstruction. It is permissible to draw an inference of want of care, unless the risk was so remote that reasonable men, in the exercise of ordinary care, would not have acted to avoid it. We think the record presents a question of fact which was properly submitted to the jury. Stern v. International Ry. Co.. 220 N. Y. 284, 115 N. E. 759, 2 A. L. R. 487; Lambert v. Westchester El. Ry. Co., 191 N. Y. 248, 83 N. E. 977; McKim v. Philadelphia, 217 Pa. 243, 66 A. 340, 19 L. R. A. (N. S.) 506; Berry on Automobiles (4th Ed.) p. 948, § 1062; Phelps v. City of Mankato, 23 Minn. 276; Moore v. Townsend, 76 Minn. 64, 78 N. W. 880; Nye v. Dibley, 88 Minn. 465, 93 N. W. 524; McDowell v. Village of Preston, 104 Minn. 263, 116 N. W. 470, 18 L. R. A. (N. S.) 190; Dunnell's Digest, §§ 4179, 4180.
2. Contributory negligence. There is evidence tending to show that decedent was driving from 20 to 50 miles per hour. When he struck the first pole with the hub of his left front wheel it sounded like striking a steel pipe with a heavy hammer. This was heard about 1,800 feet away. The car zigzagged, and continued going fast to the second pole, where it collided with such force that it broke the left front wheel, released the front axle from the frame, broke the drive shaft, forced the front seat back to the rear seat, and tore the left front door loose, and hurled it 25 feet or more, throwing the driver out. The car came to a stop with the pole standing between the radiator and the left front wheel. The radiator did not leak. The axle was not bent. Much has been said about decedent driving his car after he was blinded by the light from the other cars. But there is no direct evidence that he did. Most of the authorities cited by appellant rest upon facts where the driver, being blinded, continued his course into an object known to be present. Here it is not shown that decedent knew he was in the presence of the poles before he struck the first one, although he had occasionally traveled this street for several years. The evidence is not satisfactory as to the speed of the car when it hit the first pole nor as it continued to and struck the second. The second car, going in the opposite direction, was nearer the line of poles than the other. How much effect, if any, the lights had on decedent is in controversy, and what inferences may have been drawn from the circumstances in reference thereto were peculiarly for the consideration of the jury. It must be remembered that the cars with their bright lights going in the opposite direction were not directly in front of decedent, but on the other side of the street. It is vigorously urged that decedent's failure to avoid the second pole after warning by contact with the first pole must be construed as contributory negligence as a matter of law. But did the driver know he had hit a pole? Did this deflect the car beyond his control? Was that the reason for the car swaying as it advanced? How much, if any, did he reduce its speed? Was he, while in the exercise of due care, blinded by the nearby lights which caused him to swerve into the obstruction? These questions indicate some of the elements present which necessarily characterize our inquiry as one of fact and not of law. It is only in the clearest of cases when the facts are undisputed, and it is plain that all reasonable men can draw but one conclusion from them, that the question becomes one of law. Klare v. Peterson, 161 Minn. 16, 200 N. W. 817. The record does not disclose such a situation. The question was for the jury. The question of negligence in the presence of dazzling lights is usually for the jury. Turpie v. Oliver, 21 Alberta L. R. 508; Denver, etc., Co. v. Erickson, 77 Colo. 583, 239 P. 17; Shaber v. St. P., M. & M. Ry. Co., 28 Minn. 103, 9 N. W. 575; Williams v. Larson, 140 Minn. 468, 168 N. W. 348; Salemme v. Mulloy, 99 Conn. 474, 121 A. 870; Alpert v. Ellis, 236 Mass. 404, 128 N. E. 634; West v. Marion County, 95 Or. 529, 188 P. 184.
3. Testimony was received to the effect that the witnesses had experienced difficulty, when driving on the viaduct at night, in seeing the poles under glare of lights from cars approaching from the opposite direction. The testimony was that the poles were not dimmed completely, but that they could probably be seen the least bit. Testimony was also given by a doctor to the effect that lights upon the human eye amount to temporary paralysis of the accommodation of the eye, The claim, based upon objection to the reception of the evidence, is that it is not admissible until a foundation is first laid by a positive showing that decedent was in fact blinded. We are of the opinion that this contention is unsound. The evidence in the case may permit an inference that he was blinded. But whether it did when this evidence was received is not so important. The whole theory of plaintiff's case rested upon circumstances and probabilities tending to lead reasonable minds to such conclusion. All this testimony had a tendency to prove blindness by showing the possibility and probability thereof in an effort to reasonably account for the tragedy. It tended to establish elements in aid of permissible inferences. It was therefore admissible. 1 Wigmore on Ev. (2d Ed.) § 460, p. 830; 1 Jones Commentaries on Ev. § 164; Morse v....
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