Fonda v. St. Paul City Railway Co.

Decision Date03 February 1898
Docket Number10,881 - (262)
CourtMinnesota Supreme Court

Appeal by defendant from an order of the district court for Ramsey county, Willis, J., denying its alternative motion for judgment notwithstanding the verdict or for a new trial after a verdict for the plaintiff for $17,640.30. Reversed and new trial granted.


Street Railway -- Injury to Person on Track.

In an action by a traveler on a public street for injuries caused by the alleged negligence of defendant's motorman in operating one of its cars, held:

Negligence -- Contributory Negligence -- Question for Jury.

1. That the evidence made a case for the jury upon the questions both of the negligence of the motorman and of the contributory negligence of the plaintiff.

Evidence of Incompetency of Motorman.

2. That evidence of the general incompetency of the motorman was inadmissible.

Evidence of Incompetency of Motorman -- Of Private Rules of Employer.

3. That private rules of the defendant, intended only for the guidance of its employees, and not known to the plaintiff were inadmissible.

Motorman -- No Evidence of Wilful Negligence.

4. That there was no evidence tending to show that the acts of the motorman were wanton and wilful, or that he discovered the plaintiff in a position of danger in time to prevent the injury by the exercise of reasonable care, so as to entitle the plaintiff to recover, notwithstanding that he might have been negligent in placing himself in a place of danger.

Failure to Call Witness -- Presumption.

5. The defendant having omitted to call its motorman as a witness although within reach and available, the court was, under the circumstances, justified in instructing the jury that, in weighing the effect of the evidence actually introduced, they were at liberty to presume that the testimony of the motorman, if introduced, would not have been favorable to the cause of the defendant.

Munn & Thygeson, for appellant.

Upon the evidence in this case the plaintiff was clearly guilty of contributory negligence. O'Connell v. St. Paul, 64 Minn. 466; Hickey v. St. Paul, 60 Minn. 119; Heffinger v. Minneapolis, 43 Minn. 503; Miller v. St. Paul, 42 Minn. 454; Reed v. Minnesota, 34 Minn. 557; Newark v. Block, 55 N.J.L. 605; Busby v. Philadelphia, 126 Pa. St. 159; Thomas v. Citizens, 132 Pa. St. 504; Ehrisman v. East (Pa. St.) 24 A. 596; Wheelahan v. Philadelphia (Pa. St.) 24 A. 688; Carson v. Federal (Pa. St.) 23 A. 369; Schulte v. New Orleans, 44 La. An. 509; Wood v. Detroit, 52 Mich. 402.

The court below erred in admitting evidence of the general incompetency of the motorman. It makes no difference how negligent he may have been at other times prior to the accident. If, as a matter of fact, he handled the car in a prudent and proper manner at the time of the accident, the defendant would not be liable. Cunningham v. Los Angeles (Cal.) 47 P. 452; Baltimore v. Colvin, 118 Pa. St. 230; Warner v. New York, 44 N.Y. 465; Guggenheim v. Lake, 66 Mich. 150; Bryant v. Central, 56 Vt. 710; Dunham v. Rackliff, 71 Me. 345; Hays v. Millar, 77 Pa. St. 238; Tenney v. Tuttle, 1 Allen, 185; McDonald v. Inhabitants, 110 Mass. 49; Chase v. Maine, 77 Me. 62; Morris v. Town, 41 Conn. 252; Baldwin v. Western, 4 Gray, 333; Towle v. Pacific, 98 Cal. 342; Adams v. Chicago, 93 Iowa 565; Elliot v. Chicago, 5 Dak. 523; Maguire v. Middlesex, 115 Mass. 239; Whitney v. Gross, 140 Mass. 232; Boggs v. Lynch, 22 Mo. 563; Jagger v. National, 53 Minn. 386.

The court below also erred in admitting in evidence the private rules of the defendant railway company: (1) because there was no evidence in the case either that the plaintiff knew of the existence of, or relied upon, such rules, or that his conduct was in any way influenced by their existence; (2) because, if they were offered as proof of a custom, it would have to be a general custom of city railways, and not the custom of any particular company, and the custom must have been known to the plaintiff and relied upon by him, and his conduct influenced thereby, to his injury. Larson v. Ring, 43 Minn. 88; Larson v. St. Paul, 43 Minn. 423.

The evidence in this case did not justify the court in submitting to the jury the question of wilful or wanton negligence. Hickey v. St. Paul, 60 Minn. 119; Judson v. Great Northern, 63 Minn. 248; Holmes v. South, 97 Cal. 161; Thompson v. Chicago, 64 Minn. 159. The doctrine of wilful negligence applies only where the injured person through inadvertence has placed himself in danger, and where the wrong doer, after discovering the exposed position of the injured person, fails to exercise care in averting the danger. In the case at bar there is no evidence that the motorman could have averted the injury to the plaintiff after discovering his danger. Wilful negligence has no application where parties are equally in fault. Lockwood v. Belle, 92 Wis. 97; Goldnamer v. O'Brien, 98 Ky. 569.

The court erred in instructing the jury that the failure of the defendant to produce the motorman as a witness authorized them to infer that his testimony would be adverse to the defendant. Bleecker v. Johnston, 69 N.Y. 309; Miller v. Dayton, 57 Iowa 423; Moore v. Wright, 90 Ill. 470; Lowe v. Massey, 62 Ill. 47; Scovill v. Baldwin, 27 Conn. 316; State v. Fitzgerald, 68 Vt. 125; Arbuckle v. Templeton, 65 Vt. 205; First v. Hyland, 53 Hun, 108; Tully v. Fitchburg, 133 Mass. 499; Cross v. Lake, 69 Mich. 363; Flynn v. New York, 50 N.Y.S. Ct. 375; 1 Jones, Ev. § 18; Nelms v. Steiner, 113 Ala. 562; Carpenter v. Pennsylvania, 13 A.D. 328; Beattie v. Grand, 41 Vt. 275; Cole v. Lake, 81 Mich. 156.

Stevens, O'Brien, Cole & Albrecht, for respondent.

The evidence in this case not only fails to establish that the plaintiff was guilty of contributory negligence, but establishes conclusively that he was not negligent. Railroad v. Stout, 17 Wall. 657; Johnson v. St. Paul, 67 Minn. 260; Carroll v. Minnesota, 14 Minn. 42 (57); Hocum v. Weitherick, 22 Minn. 152; Loucks v. Chicago, 31 Minn. 526; Watson v. Minneapolis, 53 Minn. 551; Nettersheim v. Chicago, 58 Minn. 10; Flannagan v. St. Paul, 68 Minn. 300; 2 Thompson, Neg. 1172; Chicago v. Lowell, 151 U.S. 209; Mentz v. Second, 3 Abb. Ct. App. 274; Wells v. Brooklyn, 58 Hun, 389; Fandel v. Third, 15 A.D. 426; Brown v. Twenty-third, 56 N.Y.S. Ct. 356; Dobert v. Troy, 91 Hun, 28; Belton v. Baxter, 58 N.Y. 411; Voak v. Northern, 75 N.Y. 320; Chaffee v. Boston, 104 Mass. 108; Chicago v. Dignan, 56 Ill. 487; Newark v. Block, 55 N.J.L. 605; Spencer v. Illinois, 29 Iowa 55; Shea v. Potrero, 44 Cal. 414; Van Praag v. Gale, 107 Cal. 438; Robinson v. Western, 48 Cal. 409; Topeka v. Higgs, 38 Kan. 375; Kellny v. Missouri, 101 Mo. 67.

If it cannot be held as a matter of law that the plaintiff was not guilty of contributory negligence, it was at least a question for the jury. Erd v. City, 22 Minn. 443; Hutchinson v. St. Paul, 32 Minn. 398; Dahlberg v. Minneapolis, 32 Minn. 404; Shea v. St. Paul, 50 Minn. 395; Hendrickson v. Great Northern, 52 Minn. 340; Terien v. St. Paul, 70 Minn. 532; Wharton, Neg. § 420; Beach, Contrib. Neg. § 163; Kerrigan v. West, 158 Mass. 305; Hoye v. Chicago, 62 Wis. 666; Farrell v. Waterbury, 60 Conn. 239; McCully v. Clarke, 40 Pa. St. 399; York v. Maine, 84 Me. 117; Consolidated v. Scott, 58 N.J.L. 682; Buttelli v. Jersey, 59 N.J.L. 302; Detroit v. Van Steinburg, 17 Mich. 99; Cooke v. Baltimore, 80 Md. 551; Smith v. Occidental, 99 Cal. 462; Omaha v. Loehneisen, 40 Neb. 37; Kellogg v. New York, 79 N.Y. 72; Stackus v. New York, 79 N.Y. 464; McLain v. Brooklyn, 116 N.Y. 459; Valin v. Milwaukee, 82 Wis. 1; City v. Jones, 61 Ill.App. 183; Chicago v. Robinson, 127 Ill. 9; Patterson v. Townsend, 91 Iowa 725; Loucks v. Chicago, supra; Butler v. Milwaukee, 28 Wis. 487; Connelly v. Trenton, 56 N.J.L. 700; Chicago v. Hedges, 105 Ind. 398; Hendrickson v. Great Northern, supra; Thoresen v. La Crosse, 87 Wis. 597; Bonnell v. Delaware, 39 N.J.L. 189; Consolidated v. Glynn (N.J.L.) 37 A. 66; Strutzel v. St. Paul, 47 Minn. 543; Driscoll v. West, 159 Mass. 142.

Evidence is admissible of the general incompetency of the motorman when such incompetency is radical, inherent and natural, arising out of constitutional defects which render him unfit to perform the duty assigned, particularly where, as in this case, the complaint alleges as one of the acts of negligence complained of, not a specific act of negligence, but the employment of an incompetent servant and the fact that the plaintiff was injured by reason of such incompetency. 1 Beven, Neg. 786-788; 1 Greenleaf, Ev. § 52; McKinney v. Neil, 1 McLean, 540; Grube v. Missouri, 98 Mo. 330; Baulec v. New York, 59 N.Y. 356; Morse v. Minneapolis, 30 Minn. 465; Baltimore v. Camp, 81 F. 807; Vicksburg v. Patton, 31 Miss. 156; Leighton v. Sargent, 27 N.H. 460; Shaber v. St. Paul, 28 Minn. 103; State v. Manchester, 52 N.H. 528, 549; State v. Boston, 58 N.H. 410; Whittaker v. President, 126 N.Y. 544; Monahan v. City, 150 Mass. 439; Gilman v. Eastern, 13 Allen, 433; Chicago v. Sullivan, 63 Ill. 293; Michigan v. Gilbert, 46 Mich. 176; East v. Scott, 71 Tex. 703.

It was not error to admit in evidence the rules of the defendant company, for such rules are a statement by the company of what is deemed by it proper to be done or omitted in respect to the business in hand. No objection can be made by the company to the measurement of its conduct by the standard which it has itself prescribed. It is only when such rules are invoked as a standard of the conduct of others not connected with the party prescribing them that knowledge or notice is required. Such rules are not analogous to testimony of subsequent repairs as evidence of prior negligence, for the rules are...

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