Duluth St. Ry. Co. v. Speaks

• Decision Date: 22 March 1913
• Docket Number: 3,811.
• Citation: 204 F. 573
• Parties: DULUTH ST. RY. CO. v. SPEAKS.
• Court: U.S. Court of Appeals — Eighth Circuit

204 F. 573

DULUTH ST. RY. CO. v. SPEAKS.

No. 3,811.

United States Court of Appeals, Eighth Circuit.

March 22, 1913

Thomas S. Wood, of Duluth, Minn., for plaintiff in error.

W. M Steele, of Superior, Wis. (C. R. Fridley, of Superior, Wis on the brief), for defendant in error.

Before HOOK and SMITH, Circuit Judges, and VAN VALKENBURGH, District judge.

SMITH Circuit Judge.

The Duluth Street Railway Company is a corporation existing under the laws of Minnesota and authorized to do business in Wisconsin. At the time here in question it owned and operated an electric railroad in Duluth, Minn., and to and in Superior, in Wisconsin, and as a part thereof it operated a double-track electric railroad on Tower avenue, a north and south street in the city of Superior. Cars passing south used the westerly track and cars passing north used the easterly track. It appears that the company operated its cars so as to stop upon the far, rather than the near, side of intersections.

This action was brought by Harry E. Speaks, who alleged that on February 16, 1910, he as a passenger entered one of the defendant's south-bound cars on Tower avenue and paid his fare to be transported to the intersection at North Seventeenth street with Tower avenue.

'6. That upon approaching said North Seventeenth street the plaintiff signaled the motorman of the car he was riding upon to stop the same at said crossing, and that said motorman did stop the car on the south side of said crossing, and opened the rear doors and gates thereof to permit plaintiff to alight; that plaintiff disembarked from said car on the westerly side thereof, and passed around the rear end thereof to go to the easterly side of Tower avenue, to proceed thence to his home, and while he was proceeding with due care and caution, and just as he was about to step from behind the car upon which he had been riding toward the said easterly track to cross the same, and while his south view of said easterly track was wholly obscured and obstructed by the standing car from which he had just alighted, and when defendant should reasonably have anticipated that passengers were disembarking from said standing car and might pass therefrom onto said easterly track, said defendant, disregarding its duty to plaintiff to exercise due care for his safety, without sounding any bell or gong, or giving any warning, and without bringing the car to a stop, or slowing down the speed thereof whatsoever, propelled one of its cars along said easterly track, past the car which plaintiff had just alighted from, at a dangerous, excessive, and high rate of speed, to wit, at a rate of speed exceeding 20 miles per hour; that by reason of negligence of defendant as aforesaid plaintiff was in imminent danger of being run over and severely injured or killed by said rapidly moving car, and to avoid the danger thereof and to save his own life plaintiff was compelled to and did throw himself backward and away from said moving car, and in so doing, by reason of the sudden and great exertion necessary thereto, received and sustained a severe abdominal hernia to his right side, and other severe internal and external injuries to his person, and was thereby made sick, sore, and lame, and caused to suffer severe pain and mental anguish for a long time; that plaintiff still suffers at times much pain and inconvenience therefrom; that plaintiff is informed and believes that his said injuries are permanent and are incurable, and will cause him much pain, both physical and mental, in the future; that as aforesaid plaintiff has suffered and still suffers great physical pain and mental anguish on account of said injuries, and in addition thereto because thereof has been injured and impaired in his ability to pursue many of the gainful avocations of life, has had the probable term of his life materially shortened, has since been and in the future will be unable to obtain life insurance on his own life, and has been otherwise injured and made to suffer loss, all to his great damage in the sum of thirty thousand ($30,000) dollars.

'7. And plaintiff further shows to the court that by reason of having so received said injuries he was compelled to incur expense for medical care and treatment of his said injuries, and in the purchase of necessary supports and appliances to truss and support the injured parts, and has thereby been damaged in the further and additional sum of one hundred fifty ($150) dollars, which was and is a reasonable sum, and that in the future he will in like manner be compelled to expend and pay out money for such medical care, and for supports and trusses, the amount whereof plaintiff cannot now state, but that he believes it will be large.

'8. And plaintiff further alleges the fact to be that all of said injuries, and consequent pain, suffering, loss, and damage, were solely and proximately produced and caused to plaintiff by the negligence and want of care of defendant as aforesaid, and without fault or negligence on plaintiff's part.' He further alleged:

'That a promulgated rule and regulation of said company to its employes operating its cars, as well as the exercise of ordinary care for the safety of alighting passengers and other persons crossing the streets where the defendant's tracks are laid, requires and then required that, when a car has stopped at a crossing, cars approaching or about to pass in the opposite direction on the other track shall slow down or stop while alongside of the standing car, and shall sound a bell or going to warn alighting passengers and pedestrians crossing the street of the car's approach.'

The street railway company having answered, a trial was had to a jury, who found for the plaintiff below, and fixed his recovery at $5,000....