O'Connell v. St. Paul City Ry. Co.

• Decision Date: 21 May 1896
• Citation: 67 N.W. 363,64 Minn. 466
• Parties: O'CONNELL v ST. PAUL CITY RY. CO.
• Court: Minnesota Supreme Court

64 Minn. 466

67 N.W. 363

O'CONNELLvST. PAUL CITY RY. CO.

Supreme Court of Minnesota.

May 21, 1896.

(Syllabus by the Court.)

Held, in an action brought to recover damages received in a collision between a cable car and plaintiff, who was driving a horse attached to a wagon, that, construing plaintiff's testimony as to the manner of the collision in connection with a certain special finding of the jury, he was guilty of contributory negligence, and that a verdict in his favor must be set aside.

Appeal from district court, Ramsey county; John W. Willis, Judge.

Action by Dan E. O'Connell against the St. Paul City Railway Company. Verdict for plaintiff. From an order refusing a new trial, defendant appeals. Reversed.

Munn, Boyesen & Thygeson, for appellant.

Stryker & Moore, for respondent.

COLLINS, J.

This action grew out of a collision on Selby avenue, in St. Paul, between plaintiff, who was driving a horse, attached to a wagon, in an easterly direction, and a grip car running westerly on defendant's cable line. The negligence attributed to defendant, according to the complaint, was in maintaining, at the point in question, a cable slit of an unusual and dangerous width and construction, in which plaintiff's horse caught his foot, and, while so caught, the employé in charge of the grip car ran into him, causing the injuries complained of. By the answer it was alleged that the injuries were caused solely because the horse suddenly and unexpectedly turned from his course, and jumped directly in front of the grip car as it was being propelled along the rails in the usual and ordinary manner. It was also alleged that the slit was not unusually or dangerously wide, or of unusual or dangerous construction, and, further, that the horse was not caught in the slit. At the trial two special questions were submitted to the jury,-the first, was the horse caught in the cable slit? the second, did the horse suddenly and unexpectedly turn from his course, and jump in front of the car? Both of these questions were answered in the negative, and then the jury returned a general verdict for plaintiff, but in a ridiculously small amount, if he was entitled to recover at all. By reason of the negative answer to the first of these questions, one very important feature has been eliminated from the plaintiff's case. The defendant has thereby been relieved of the consequences of a charge that the cable slit was unusually and dangerously wide, and when examining the evidence for the purpose of passing upon the contention of defendant's counsel that, from plaintiff's own testimony, it appeared that defendant's employés were not negligent in any degree, and also that it was conclusively established that plaintiff was guilty of contributory negligence, this court is relieved from a consideration of testimony tending to show that the horse did catch one of...