Bolstad v. Armour & Co.

• Citation: 144 N.W. 462,124 Minn. 155
• Court: Supreme Court of Minnesota (US)
• Decision Date: 26 December 1913
• Parties: BOLSTAD v. ARMOUR & CO. et al.

124 Minn. 155

144 N.W. 462

BOLSTAD

v.ARMOUR & CO. et al.

Supreme Court of Minnesota.

Dec. 26, 1913.

Appeal from District Court, Ramsey County; Frederick N. Dickson, Judge.

Action by Peter Bolstad against Armour & Co. and another. Verdict for plaintiff. From denial of alternative motion for judgment or new trial, defendants appeal. Affirmed.

Syllabus by the Court

The complaint in a personal injury action alleged that defendants negligently drove against plaintiff; also that at the time the relation of master and servant existed between defendants, the servant being in charge of the rig. Held to state a cause of action against the master.

Defendants' negligence and plaintiff's contributory negligence were for the jury, and their verdict, approved by the court, is fairly supported by the evidence. It is not based on demonstrably false testimony, nor is it excessive.

It was not error to refuse to give requested instructions as to right of recovery in case certain conduct of the parties was found; the court having given the jury the correct definition whereby to determine whether such conduct constituted negligence, and having stated the effect of negligence upon the verdict.

An instruction suggesting that a pedestrian has not the right to walk on any part of a street, except the sidewalks and the crosswalks at the intersection of streets, was properly refused. Wilson, Mercer, Swan & Stinchfield, of Minneapolis, for appellants.

Samuel A. Anderson, of St. Paul, and H. N. Benson, of St. Peter, for respondent.

HOLT, J.

In the forenoon of February 25, 1911, plaintiff was walking west on Ninth street in St. Paul towards Wabasha street, intending to take a street car for Minneapolis. He was on the southerly side of the street, and when within about 30 feet of Wabasha street, hearing the car coming around the corner of Eighth street, he stepped off the sidewalk and walked diagonally across to the corner on the north side of Ninth street, where the car stops. He walked fast. When more than half way across he stopped to avoid colliding with a rig coming rapidly from the east, and at that moment a horse and buggy of defendant Armour & Co., in charge of its servant defendant Carlson, was, according to plaintiff's claim, driven negligently against him, violently throwing him down, and causing a fracture of the hip and two ribs. Carlson's version is this: As he was driving easterly on Ninth street at a slow trot, when crossing Wabasha street, he noticed plaintiff 20 feet ahead. The latter passed Carlson's path, but, apparently confused by the swiftly approaching rig from the east, stepped suddenly back several feet, bumping against the neck of the horse or the front part of the thill of defendants' rig, causing him to fall. In addition to the general allegation that defendants negligently drove upon and against plaintiff, it was specifically alleged that the rig was driven on the wrong side of the street, at a reckless speed, and without keeping a proper lookout. A verdict of $2,500 was awarded plaintiff, and defendants appeal from the order denying their alternative motion for judgment or a new trial.

[1] Defendant Armour & Co. contends that the complaint fails to state a cause of action against it, because it does not allege that Carlson was engaged in his master's business at the moment of the collision; hence judgment should now be ordered in its favor, since during the entire trial this point was preserved by proper objections and motions. The position is not well taken. The complaint avers that at the time of the injury Carlson was in the employ of Armour & Co. as a driver and in the immediate charge of the rig; also that defendants negligently drove the rig against plaintiff. Acts done by a servant within the scope of his duties and in furtherance of the master's business are deemed the acts of the master and may be pleaded as such. All the negligent acts are charged against both defendants. The complaint stated a good cause of action against Armour & Co.; therefore it was not prejudiced by the court's refusal to hear its demurrer filed, but not served, while the action was improperly in the federal court.

[2] The jury found that the collision was due to defendants' negligence, and failed to find any contributory negligence in plaintiff. It is not for us to determine the facts, or weigh the credibility of the witnesses, or say that plaintiff's witnesses falsified and did not see the accident. It took place on the border of a street usually congested with travel. It was one of these unexpected occurrences which does not attract the attention of all observers at the same moment or from the same viewpoint and is over in a second or two. Therefore it is not surprising that witnesses will disagree as to many of the details. This is not one of the cases where either the verdict or the testimony supporting it may be said to be demonstrably wrong. On the contrary, the evidence fairly supports the verdict. Even if the fracture of the...