Bremer v. St. Paul City Ry. Co., Nos. 15,810-(118).

CourtSupreme Court of Minnesota (US)
Writing for the CourtJaggard
Citation107 Minn. 326
Docket NumberNos. 15,810-(118).
Decision Date12 March 1909
107 Minn. 326
Nos. 15,810-(118).
Supreme Court of Minnesota.
March 12, 1909.

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Action in the district court for Ramsey county to recover $10,100 damages for personal injuries. The case was tried before Olin B. Lewis, J., and a jury which returned a verdict in favor of plaintiff for $2,000. From an order denying defendant's motion for judgment notwithstanding the verdict or for a new trial, it appealed. Affirmed.

W. D. Dwyer and W. R. Duxbury, for appellant.

McElwee & Hollihan, for respondent.


Plaintiff and respondent, a woman sixty five years of age, was a passenger on a street car of defendant and appellant's railway company. The car stopped at her signal, at a point about half way between two cross streets, where plaintiff had often gone out of the cars to attend to business. Another passenger had left the car in front of her, and

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passed behind it. She followed him directly and "wanted to follow him farther on." The car from which she alighted was going west. As she was going diagonally across the street, she was struck by an east-bound work car. She testified: "I heard nothing, no bell and nothing, and it hit me on the legs, and I fell down, and thereafter I didn't know anything any more."

The jury might have inferred that plaintiff collided with the east-bound car at a point four feet back of the fender; but her testimony and the circumstances in connection with the place of fracture and laceration of her right leg and the distance from its fender to the top of the rail were sufficient to have justified a finding that she was struck by the fender in front of the approaching car. It must be here assumed that it so found. The distance between the inside rails of the double tracks was such as to leave a clearance not to exceed eighteen to twenty four inches between the cars when opposite to each other. One of the defendant's witnesses testified that the work car, loaded with crushed rock, was going only three or four miles an hour; but there was also testimony that the usual rate of speed at that point was ten or twelve miles an hour, and that the work car ran one hundred feet after it struck plaintiff. The witness who alighted ahead of plaintiff heard and saw the construction car. Thereupon he "kind of obliqued to the left and crossed the track, at the same time motioned to the party following him and also to the employees with [his] hand like this (indicating), and just about that time the front end of the car came between [him] and the party who followed, * * * the lady, and [he] heard a scream and at the same time * * * the appliance of the emergency brake, or something of that kind."

Other testimony on the point was more favorable to the plaintiff. The jury returned a verdict for plaintiff in the sum of $2,000. This appeal was taken from the order of the trial court denying defendant's motion in the alternative.

Defendant's negligence must be assumed. Its brief does not contend that actionable negligence was not shown. Moreover, as will appear from the consideration of plaintiff's negligence, which immediately follows, the question was for the jury. The only controversy here is whether plaintiff as a matter of law was guilty of contributory negligence.

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The primary fallacy, which in fact, although not in phrase, underlies defendant's contention that plaintiff was so guilty, and which is frankly avowed by some authorities cited to sustain it, is that a street railway company has some superior or paramount right on a public street to that of a passenger or driver of vehicles. This view, it is true, is sustained by a more or less clearly defined group of cases which secure to a street car system power to use public streets almost equal to that of a railroad company to use its tracks. For example, see Chicago v. Meinheit, 114 Ill. App. 497; Denver City T. Co. v. Norton, 141 Fed. 599, 73 C. C. A. 1; Gray v. Fort, 198 Pa. St. 184, 47 Atl. 945 (see post); Minnich v. Wright, 214 Pa. St. 201, 63 Atl. 428, and subsequent discussion of rule as to "stop, look, and listen." Three considerations are currently relied upon to confer upon street railways the priority of way, viz., that their tracks necessitate a fixed course, which makes it impossible to turn cars to the side; that such companies are generally authorized to propel heavy cars by powerful motor force, in consequence of which the momentum and inertia of street cars differ from that of ordinary vehicles; and that general convenience demands rapid and undeterred transit by such public service companies. Upon the most casual reflection, however, it will clearly appear that the conclusion does not follow from these premises. Due allowance may be made for all these considerations. The lawful use of streets by street cars on the one part, and by footmen and vehicles on the other, may be differentiated by due reference to these circumstances; and none the less the common-law rights of ordinary users of the highway, though somewhat modified by them, may still be preserved in substance. In other words, the common-law rules as to the use of public highways may be merely adapted to new conditions imposed by the weight, power, and tracks of a street car, its inability to move sidewise, and its momentum.

There is a natural and necessary difference between the fundamental right of an ordinary freight and passenger railroad to its right of way and the right of the street car company to use the streets of a city. The railroad company, by gift, voluntary transfer for consideration, or condemnation with compensation, secures a fee or an incorporeal hereditament, and operates its roads by virtue of ownership; the street car company obtains a privilege to build its tracks and operate its cars

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without gift, purchase, or condemnation of land. That privilege creates no new servitude upon the highway, but makes possible an additional use of such highway, consistent with and in furtherance of the purposes of its original dedication. The railroad company may have an estate; the street car company always has a franchise. The lands over which a railroad company builds its road are withdrawn from general or private use; the surface of a street is open to common travel. The way of a railroad company is used by it exclusively, subject to limited rights at public or private crossings; a street is used concurrently by the street car company and by the public. Kinsey v. Union, 169 Ind. 563, 81 N. E. 922; Indianapolis v. Kidd, 167 Ind. 402, 79 N. E. 347, 7 L. R. A. (N. S.) 143 (collecting cases at page 145); Attorney General v. Metropolitan, 125 Mass. 515, 28 Am. 264; Robbins v. Springfield, 165 Mass. 30, 42 N. E. 334; Benjamin v. Holyoke, 160 Mass. 3, 35 N. E. 95, 39 Am. St. 446; Hall v. Odgen, 13 Utah, 243, 258, 44 Pac. 1046, 57 Am. St. 726; Newark v. Block, 55 N. J. L. 605, 27 Atl. 1067, 22 L. R. A. 374; Citizens' v. Camden, 33 N. J. Eq. 267, 36 Am. 542; Lawler v. Hartford, 72 Conn. 74, 43 Atl. 54; Clark v. Bennett, 123 Cal. 275, 55 Pac. 908; Spiking v. Consolidated, 33 Utah, 313, 93 Pac. 841; Pilmer v. Boise, 14 Idaho, 327, 94 Pac. 432, 15 L. R. A. (N. S.) 254; United Railways v. Watkins, 102 Md. 264, 62 Atl. 234, 2 Current Law, 1762, 4 Am. & Eng. An. Cas., 449, note.

Every traveler has an equal right on public streets to every part thereof with any other traveler, including street railways. The railway company can obtain a superior right only by condemnation. It has no priority of way. Id. And see Laufer v. Bridgeport, 68 Conn. 475, 37 Atl. 379, 37 L. R. A. 537. Even in New York (see post) it has been held that as to persons who have occasion to cross the highway the rights of the street car are precisely the same in kind as the right of other persons or vehicles. Dunican v. Union, 39 App. Div. 497-500, 57 N. Y. Supp. 326; Sesselmann v. Metropolitan, 65 App. Div. 484, 72 N. Y. Supp. 1010; O'Neil v. Dry Dock, 129 N. Y. 125, 29 N. E. 84, 26 Am. St. 512. This is certainly the rule in this state. Shea v. St. Paul City Ry. Co., 50 Minn. 395, 399, 52 N. W. 902; Holmgren v. Twin City R. T. Co., 61 Minn. 85, 63 N. W. 270; Watson v. Minneapolis Street Ry. Co., 53 Minn. 551, 55 N. W. 742; Kennedy

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v. St. Paul City Ry. Co., 59 Minn. 45, 60 N. W. 810; Smith v. Minneapolis Street Ry. Co., 95 Minn. 254, 104 N. W. 16.

The mutual rights of travelers and street cars to use public streets impose the duty on both to exercise mutual care. The rights and duties of both are reciprocal. Shea v. St. Paul City Ry. Co., supra; Pilmer v. Boise, supra. Both are required to exercise care. Neither is bound to anticipate negligence on the part of the other. On the one hand, the motorman ordinarily is justified in assuming that a person using the highway will exercise ordinary care for his own protection (8 Current Law, 2023, note 32), and that no one will attempt to cross the tracks so close in front of a moving car as to render a collision probable. See, for example, Baly v. St. Paul City Ry. Co., 90 Minn. 39, 42, 95 N. W. 757; Bresee v. Los Angeles, 149 Cal. 131, 85 Pac. 152, 5 L. R. A. (N. S.) 1059.

The general rule is none the less certain that at a street crossing, or at a place used as a street crossing, the motorman in charge of a car approaching one discharging passengers is bound to keep a sharp lookout for passengers or other persons who may attempt to cross the tracks behind the standing or moving car, to have his car under such control that he can stop it upon the appearance of danger, and to give such signals as will usually protect travelers who are in the exercise of ordinary prudence. Louisville v. Hudgins, 124 Ky. 79, 98 S. W. 275, 7 L. R. A. (N. S.) 152. And see Chicago v. Robinson, 127 Ill. 9, 18 N. E. 772, 4 L. R. A. (N. S.) 126, 11 Am. St. 87; Cincinnati St. Ry. Co. v. Whitcomb, 66 Fed. 915, 14 C. C. A. 183; Birmingham v. City, 119 Ala. 615, 24 South. 558, 72 Am. St...

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