Bodin v. Duluth Street Railway Company

• Decision Date: 24 May 1912
• Docket Number: 17,549 - (112)
• Citation: Bodin v. Duluth Street Railway Company, 136 N.W. 302, 117 Minn. 513 (Minn. 1912)
• Parties: JOHN BODIN v. DULUTH STREET RAILWAY COMPANY
• Court: Minnesota Supreme Court

136 N.W. 302

117 Minn. 513

JOHN BODIN v. DULUTH STREET RAILWAY COMPANY

Nos. 17,549 - (112)

Supreme Court of Minnesota

May 24, 1912

Action by the administrator of the estate of Carl Upstrom, deceased to recover $5,000 for the death of his intestate. The answer alleged that the accident was due to the negligence of deceased. The reply was a general denial. The case was tried before Hughes, J., and a jury which returned a verdict in favor of plaintiff for $4,000. Defendant's alternative motion for judgment was denied, and that for a new trial was granted, unless plaintiff consented to a reduction of the verdict to $2,000. Plaintiff consented. From the order denying judgment notwithstanding the verdict or for a new trial, defendant appealed. Affirmed.

SYLLABUS

Negligence of pedestrian -- question for jury.

Where it appears that a pedestrian, about to cross street railway tracks at a regular street crossing, looked twice after he left the curb toward the approaching car, but the night was dark, the speed of the car was unusually high, the noise on the rails as then laid not great, the headlight on the car was smaller and dimmer than ordinarily used on the cars there operated, the street was being paved with paving stones, and debris scattered around, the rails being raised six or seven inches from the concrete base, then partly laid, requiring attention to avoid the obstructions, it becomes a question for the jury whether such pedestrian, after he so looked and saw the car, was justified, in the exercise of ordinary care to conclude that he could cross the track in safety.

Verdict sustained by evidence.

The finding that defendant ran the car at a negligently high speed and failed to give the usual warning of its approach is sustained by the evidence.

Damages not excessive.

Where the only next of kin was decedent's mother, sixty-seven years old, and to whose support he had regularly contributed for the last three years, held, that $2,000 damages for his death was not excessive.

Thomas S. Wood, for appellant.

Andrew Nelson and George B. Sjoselius, for respondent.

OPINION

HOLT, J.

The action is for injuries resulting in the death of plaintiff's intestate through the alleged negligence of the defendant. The trial resulted in a verdict of $4,000. The defendant's motion for judgment notwithstanding the verdict was denied; also the alternative motion for a new trial, if plaintiff remitted $2,000 from the verdict. Plaintiff remitted, and defendant appeals.

The defendant is a street railway company operating by electric power a line, among others, between Duluth and West Superior upon a street called Garfield avenue. The north-bound track of the line is east of the center of the street, and the south-bound on the west thereof. At about 10:30 o'clock on the night of September 12, 1910, a car of the defendant running north collided with Carl Upstrom, plaintiff's intestate, inflicting injuries resulting in death the next day. The testimony tended to show that the night was dark and cloudy; one witness claiming it was somewhat foggy. The usual street light was not burning. The street was being paved with sandstone blocks, laid on a concrete base. The testimony is somewhat obscure as to whether the paving of Garfield avenue was completed further than to the east rail of the southbound track. At any rate, all of the avenue east of the west rail of the north-bound track had only the base. The rails were six or seven inches higher than the concrete. The testimony also tended to show that there were sandstone blocks and debris between the tracks and rails. Where the accident occurred is a short cross street, called Six Hundred. The collision took place on the north crossing of this street.

Upstrom and a companion, since deceased, immediately before the accident, came out of the boarding house where they lived, at the north-west corner made by the intersection of the street Six Hundred with Garfield avenue, and were observed by a witness, who stood on the sidewalk at the northeast corner. This witness testified that he heard Upstrom and his companion, when they were about three feet east of the west curb of the avenue, talk about whether the car then approaching from the south on the north-bound track was so far away that they could safely cross, and that they looked toward the car, one observing that there was ample time; Upstrom saying to his companion, Anderson, as he pointed to the coming car, "There is one of them coming away down there," and Anderson, responding, said: "We can make that one easy; it is so far away." They then walked right across, or, perhaps, a little slanting, since they started a few feet north of the north crossing. This witness also states that he observed that Upstrom, who was about three feet in the lead, again looked toward the car when about nine feet from the track, walking from the time he started at a steady, brisk gait. When Upstrom looked the first time, the car appeared to this witness to be a block and a half away, and when the second time about half a block. Upstrom was struck, this witness says, when he was stepping over the west rail. The deceased was thrown a few feet forward and away from the car, and the car was stopped, so that the rear vestibule was about eighteen feet further north than the body; the car having traveled some sixty-eight feet after the collision. There was also testimony tending to show that the rails were new and dry, and that not much noise was made by the car in coming; that the headlight was not one of the ordinary ones used on cars traveling there, but one of smaller size and power; and, further, that the car was run at a speed of over twenty miles per hour without slacking up for crossings. The avenue was straight for about a mile towards the south, and all the way closely built; the buildings extending to the sidewalk.

We have set out the evidence tending most strongly to show that the deceased was not guilty of...