Geldert v. Boehland, 31177.

• Decision Date: 25 June 1937
• Docket Number: No. 31177.,31177.
• Citation: 274 N.W. 245,200 Minn. 332
• Court: Minnesota Supreme Court
• Parties: GELDERT v. BOEHLAND et al.<SMALL><SUP>*</SUP></SMALL>

274 N.W. 245

200 Minn. 332

GELDERT v. BOEHLAND et al.^*

No. 31177.

Supreme Court of Minnesota.

June 25, 1937.

Appeal from District Court, Hennepin County; A. W. Selover, Judge.

Action by Anna Geldert, administratrix of the estate of Carl Hultin, against Harry Boehland and others. From an order denying defendants' motions in the alternative for judgment notwithstanding the verdict or a new trial, defendants appeal.

Reversed, with direction.

Ralph T. Boardman and John F. Dulebohn, both of Minneapolis, for appellants.

A. E. Bryngelson and E. L. Rosenbloom, both of Minneapolis, for respondent.

HOLT, Justice.

The appeal is from the order denying defendants' motion in the alternative for judgment notwithstanding the verdict or a new trial.

The action was brought to recover for the death of Carl Hultin, alleged to have been caused by the wrongful acts of the defendants, the Minneapolis Street Railway Company and its motorman, the defendant Harry Boehland. On October 10, 1932, at about 7:20 in the morning, there was a collision between an Overland automobile driven east on Forty-Ninth Street North and a streetcar of defendant street railway company, operated by defendant Boehland, going south on Bryant Avenue North. It was full daylight. Some witnesses describe it as a bright day. The streets were dry. It was a right angle intersection. There are double street railway tracks on Bryant avenue running clear up to Fifty-Third Street North. Both streets are oiled but not paved. There are no sidewalks on either Bryant avenue or Forty-Ninth street in the vicinity of their intersection. The motorman on a streetcar going south from the north end of Bryant avenue has a clear and unobstructed view of any automobile approaching the intersection from the west on Forty-Ninth street for more than 600 feet before entering the intersection. Likewise an automobile driver going east on Forty-Ninth street has an unobstructed view of any streetcar moving towards the intersection from the north for more than 600 feet before entering the intersection. That is, if a line is drawn from a point 600 feet north of the intersection on Bryant avenue to a point 600 feet west of the intersection on Forty-Ninth street, the triangle inclosed consists of a level tract of land with no trees or buildings obstructing a full view to one on either of the two streets within 600 feet of the intersection of any vehicle within 600 feet of the same intersection moving on the other street. This triangle was part of a cultivated tract used for community gardens prior to 1932, but was overgrown with weeds in the fall of that year; however, the weeds were not over 2 feet high, so the view of a streetcar or automobile would not be interfered with. The concensus of the testimony of the eyewitnesses of the collision seems to be that, when the streetcar was about 100 feet from the intersection, Hultin's car was about twice that distance therefrom; that the vehicles came together when the streetcar was within 3 or 4 feet of the south crosswalk of Forty-Ninth street; that the impact of the automobile was on the front right corner of the streetcar; that the glass in the two side windows in front of the door was shattered, the headlight shorn off, and the bumper or cowcatcher of the streetcar torn away. The impetus of the automobile carried the debris to the east of the streetcar. Hultin was found on the front seat dying.

There was a motion of defendants for a directed verdict at the close of the testimony. The learned trial court expressed doubt whether there was evidence sufficient to go to the jury on defendants' negligence, and whether the contributory negligence of Hultin did not appear as a matter of law, but submitted both issues to the jury. There was a verdict for plaintiff. It was in the amount of $2,500, and is an indication that the jury had misgivings as to defendants' legal responsibility for the death. Hultin was a healthy, industrious man 45 years old. He left surviving a 13 year old daughter and his mother 74 years of age.

A careful consideration of the evidence leads to the conclusion that the contributory negligence of Hultin appears as a matter of law and must result in the entry of judgment for defendants non obstante. The negligence of the...