Fitzgerald v. Village of Bovey
| Decision Date | 25 May 1928 |
| Docket Number | No. 26614.,No. 26615.,26614.,26615. |
| Citation | 219 N.W. 774,174 Minn. 450 |
| Parties | FITZGERALD v. VILLAGE OF BOVEY (two cases). |
| Court | Minnesota Supreme Court |
Appeal from District Court, Itasca County; B. F. Wright, Judge.
Actions by Agnes Fitzgerald and by Clarence Fitzgerald against the Village of Bovey, tried together. From the judgments for plaintiffs, defendant appeals. Affirmed.
Naughtin & Henley, of Hibbing, and C. A. Wagner, of Bovey, for appellant.
Gannon, Strizich & Farnand, of Hibbing, for respondent.
These two personal injury actions were tried jointly, separate verdicts returned, and judgments entered thereon, from which defendant appeals.
Second avenue, a paved street in the village of Bovey, runs north and south and is intersected by Fourth street, unpaved, running east and west. The width of the Second avenue pavement is 41 feet 2 inches between curbs. West of the intersection, Fourth street was used but little. Near the center of the intersection of these two sreets, close to a cover over a sewer manhole, the village had placed and maintained a circular, metalic plate or marker, referred to in the evidence as a "dummy policeman" or a "dummy." It was cone-shaped, 18 inches in diameter, about 6 inches high in the center, and fastened to the pavement by a bolt through its perpendicular center. About three-fourths of an inch of the upper part of the bolt, extending above the dummy, was threaded and on this a nut was screwed when the dummy was installed. At the time the dummy was removed, the nut had been broken off and the dummy was removable by hand. The dummy was not in the exact center of the intersection. It extended to the west of the center 13 inches, and but 5 inches to the east thereof. Eighteen feet 3 inches south of the dummy, the pavement began to narrow, equally on each side, and in 16 feet further the width was reduced to 18 feet, the usual width of a Babcock paved highway. Second avenue is a part of trunk highway No. 35. Thirty-six feet from the Second avenue curb line, at the corner southwest of the dummy, is located a well-lighted gasoline filling station. A garage is at the northwest corner. Near each of the four corners of the intersection and diagonally 40 feet from the dummy is a street lamp on a post.
The accident here involved occurred at the intersection above described on September 14, 1925, between 8 and 8:30 o'clock p. m. It was dark. There is a dispute as to whether the street lamps were lighted. Respondents Clarence and Agnes Fitzgerald, husband and wife, were riding in a Ford touring car, testified to being in good condition, driven by the husband. Both were riding in the front seat. The car, with its headlights burning, was going in a southerly direction on Second avenue. There was testimony that its rate of speed did not exceed 15 miles an hour. The left front wheel of the car hit the dummy, the car was diverted in a southeasterly direction, and, after going 61½ feet, tipped over in a ditch against a telephone pole.
The husband's action was for injuries to himself and damage to the car; that of the wife was for injuries to herself. There is no complaint made as to the amount of the verdicts and the judgments entered thereon.
The dummy had been installed for about four months. Mr. Fitzgerald stated that he could not and did not see it on the night in question, but had seen it once several months before when driving on Second avenue; that he was looking ahead to see where he was going. He testified that at the time of the accident he was not driving in the middle of the street but that the left front wheel might have been on the center line of the street. His wife testified that the car was on the right side of the center of the street. Witness Smith says that the car was pretty well on the right side. Mr. Fitzgerald testified that at the time of the accident he was blinded by the lights of two on-coming automobiles; did not have in mind the fact that a dummy was there, and his attention was not called to that fact; that he did everything he could to control the car and avoid injury. Mrs. Fitzgerald did not see the dummy and did not remember it was there. The testimony also shows that there were one or more parked automobiles on Second avenue near the northwest corner of the intersection.
But two questions are involved on these appeals: (1) Was the defendant negligent in placing and maintaining the intersection plate at the place and in the manner described? (2) Were the plaintiffs guilty of contributory negligence?
1. The question as to whether the defendant was negligent was submitted to the jury under proper instructions, unobjected to, and decided in the affirmative. There was ample evidence to sustain that conclusion.
Defendant contends in its brief (though frankly stating inability to find cases touching directly on the point) that as the governing body of the village determined to install and did install such a marker as a practical thing to do, as a precaution or safeguard to assist the traveling public, and that other municipalities have done the same, there was no question to submit to the jury. There is, however, here no evidence that other municipalities have installed and maintained like markers, nor is there any evidence that such markers are practical, proper, or necessary. All that is shown is that the defendant installed and maintained this marker and others like it. This mere fact is by no means conclusive that it was proper and did not constitute a defect or obstruction in the street.
Counsel for defendant cites excerpts from various Minnesota railroad cases which are not particularly helpful or determinative. There is here no situation such as in McCann v. M. & St. L. Ry., 159 Minn. 70, 73, 198 N. W. 300, where railway engineering problems to be solved by experts were involved, the court there holding that a jury, unaided by expert testimony, should not be permitted to pass on negligence in the construction plan. In Weireter v. G. N. Ry. Co., 146 Minn. 350, 178 N. W. 887, the customary mode of shunting cars in extensive switchyards was being considered. In Olson v. C., R. I. & P. Ry., 162 Minn. 194, 202 N. W. 490, a directed verdict for defendant was sustained because this court had previously held under circumstances similar to those in that case that there was no obligation on the railway company to give warnings of the approach of switch engines to employees familiar with the operations in the yards. The case of Larson v. D., M. &. N. Ry. Co., 142 Minn. 366, 172 N. W. 762, simply held that a defendant was not required to guard against unforeseeable dangers such as was the one in that case.
Second avenue, a main street in the village, a part of trunk highway No. 35, was a much-traveled thoroughfare. The dummy...
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