Day v. Duluth Street Railway Company
| Decision Date | 23 May 1913 |
| Docket Number | 18,002 -- (104) |
| Parties | JOHN W. DAY v. DULUTH STREET RAILWAY COMPANY |
| Court | Minnesota Supreme Court |
Action in the district court for St. Louis county to recover $ 15,800 for personal injury caused by a collision between an automobile which plaintiff was driving and defendant's street car. The answer denied that plaintiff was driving his automobile across defendant's tracks in the usual and ordinary manner, or that he was in the exercise of all due care and caution, and alleged that without reason he negligently drove his automobile directly in front of defendant's car, in so doing came into collision with it and that whatever injury plaintiff received was wholly the result of his own negligence. The reply specifically denied the foregoing allegations of the answer. The case was tried before Dibell, J., and a jury which returned a verdict of $ 5,835 in favor of plaintiff. From an order denying defendant's motion for judgment notwithstanding the verdict or a new trial, it appealed. Affirmed.
Order affirmed.
Collision with street car -- contributory negligence -- damages.
Plaintiff sustained injuries in a collision between his automobile and a street car. It is held:
(1) The evidence sustains the verdict on the point of the negligence of defendant.
(2) It did not conclusively appear that plaintiff was guilty of contributory negligence, and the verdict is sustained by the evidence on this point.
(3) That plaintiff violated a city ordinance in turning to the left to enter an intersecting street before he had passed beyond the center of the street was not negligence per se, or conclusive evidence of negligence.
(4) Plaintiff's account of the accident was not so inherently improbable or so opposed to the weight of the other evidence as to warrant setting aside the verdict.
(5) The damages were not excessive.
(6) There was no error in denying a motion for a new trial made on the ground of newly discovered evidence.
Thomas S. Wood, for appellant.
A. E. McManus and W. M. Steele, for respondent.
This action was to recover damages for injuries received in a collision between an automobile driven by plaintiff and a street car operated by defendant. The issues were submitted to the jury and a verdict rendered in favor of plaintiff in the sum of $ 5,835. Defendant appeals from an order denying its motion in the alternative for judgment notwithstanding the verdict or for a new trial.
The briefs and arguments were mainly devoted to the question whether it conclusively appeared that plaintiff was guilty of contributory negligence, and, if not, whether the evidence sustains the verdict on this point. The evidence in relation to the accident was sufficient to prove the following facts:
Second street in Duluth runs east and west, and is intersected at right angles by Lake avenue, and the numbered avenues. First avenue east is the next street east from Lake avenue, Second avenue east the next, and so on. The accident happened near the corner of Second street and Second avenue east. Plaintiff was driving his automobile, a two passenger runabout, on his way to business on the morning of August 31, 1911. He entered Second street at Fourth avenue east. Defendant operates a double track line on Second street. Cars run west on the upper or northerly side of the street, and east on the lower or southerly side. As plaintiff turned on Second street, a westbound car had just passed Fourth avenue. He followed on the north side of the track behind this car, until it began to slacken speed to stop at Second avenue east, when he turned to the left and south, intending to go south on Second avenue to his destination. As he was crossing the south track, an east bound car struck his automobile, demolished it, and seriously injured plaintiff.
Plaintiff testified that, when he was about 50 feet east of Second avenue, the west bound car slackened its speed, preparatory to stopping at the west crosswalk, that he then looked and saw the east bound car a block away at First avenue, and turned to the south to cross the south track and go down Second avenue. What happened then is told in his own language: "Well, just after I started to turn, the west bound car was stopped, and just as I started to turn this east bound car,--when I got so I could see past the west bound car I seen it coming, in fact it was right on top of me, and I believe I turned to try to get out of the way just at the time I was hit." Plaintiff remembered nothing more after that.
Plaintiff testified that when he saw the east bound car at First avenue, he thought he had plenty of time to cross before it would reach Second avenue; that he turned crossed the north track, and the space between the two tracks, and was partly across the south track when he was struck. After he turned he went a distance of 25 or 30 feet before the collision. He looked for the east bound car but once, just before he turned, when, as he testifies, it was a block or more away. His vision to the west as he passed behind the west bound car was obstructed by that car. When he saw the east bound car before he started to cross the street, ...
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