Christison v. St. Paul City Ry. Co.

• Decision Date: 07 December 1917
• Docket Number: No. 20645.,20645.
• Citation: 138 Minn. 456,165 N.W. 273
• Parties: CHRISTISON v. ST. PAUL CITY RY. CO.
• Court: Minnesota Supreme Court

138 Minn. 456

165 N.W. 273

CHRISTISON

v.ST. PAUL CITY RY. CO.

No. 20645.

Supreme Court of Minnesota.

Dec. 7, 1917.

Appeal from District Court, Ramsey County; Willard L. Converse, Judge.

Action by William C. Christison against the St. Paul City Railway Company. Verdict for defendant, and from an order denying a new trial, plaintiff appeals. Order affirmed.

Syllabus by the Court

Where a passenger in an automobile, on approaching a street intersection over which street cars are operated, hears a street car coming thereon at a high or dangerous rate of speed, it is a question for the jury whether, in the exercise of ordinary care, he should have warned the driver of the automobile, and whether a failure so to warn contributed to the collision, then occurring between the automobile and street car. Edgerton & Dohs, of St. Paul, for appellant.

W. D. Dwyer and F. D. McCarthy, both of St. Paul, for respondent.

HOLT, J.

The action is to recover damages for injuries received in a collision between defendant's street car and an automobile in which plaintiff was riding. Defendant had a verdict, and plaintiff appeals from the order denying a new trial.

The evidence was such that the jury could find either way on the issue of defendant's negligence. The court also submitted the defense of plaintiff's contributory negligence. This furnishes the only basis for the appeal. There was no direct testimony offered by defendant to establish negligence on the part of plaintiff; but the answer alleged it as a defense, and if there was evidence on that issue, no matter by whom adduced, no error occurred in submitting the same to the jury.

Plaintiff, on the day of the accident, was invited to ride in a Ford automobile owned and driven by his brother. It was early in the afternoon of a windy and cold November day. The ground was bare and dry. Another person sat in the front seat with the driver. Plaintiff was alone in the back seat. They drove south on Lexington, a paved street running north and south in the city of St. Paul, and were approching Rondo, a street running east and west, along which, upon double tracks, defendant operates street cars. There is a 4 per cent. down grade from Dunlap to Lexington. Dunlap is the first street west of Lexington, and runs parallel thereto. Plaintiff's evidence tended to show that the automobile was moving at the rate of from 15 to 20 miles an hour when nearing the street car tracks. The top of the machine was up, and also the side curtains for the rear seat but the front view of plaintiff was unobstructed, and there was a chance to obtain a side view through the usual isinglass placed in the side curtains. There is a cut in Rondo street as it approaches Lexington, but the driver of the automobile saw the street car coming from the west as he was within 90 feet of Rondo. Plaintiff testified that he did not see the street car but he heard it. He said: ‘I heard it coming...