Jasinuk v. Lombard

• Citation: 189 Minn. 594,250 N.W. 568
• Decision Date: 20 October 1933
• Docket Number: No. 29491.,29491.
• Parties: JASINUK v. LOMBARD et al.
• Court: Supreme Court of Minnesota (US)

250 N.W. 568

189 Minn. 594

JASINUK v. LOMBARD et al.

No. 29491.

Supreme Court of Minnesota.

October 20, 1933.

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

Action by Rudolph Jasinuk, as special administrator of the estate of Bazily Kolodka, deceased, against Ray A. Lombard and the National Cab Company. From an adverse order, the National Cab Company appeals.

Affirmed.

Cox, Weeks & Kuhlman, of Minneapolis, for appellant.

Ossanna, Hall & Hoaglund, Charles E. Carlson, and Edward J. Callahan, all of Minneapolis, for respondent.

STONE, Justice.

Action for wrongful death, caused by an automobile driven by defendant Lombard and claimed by plaintiff to have been owned by defendant National Cab Company, or, at least, jointly operated by the two defendants. Defendant Lombard did not answer. After a verdict against it, the National Cab Company moved for judgment notwithstanding or a new trial. The motion for judgment was denied. So, also, was the motion for a new trial, but upon condition that plaintiff consent to a reduction of the verdict from $7,500 to $5,000. The time originally fixed by that order for the filing of plaintiff's consent was thereafter extended by another order. Plaintiff's consent to the reduction was filed within the extended time. Only defendant National Cab Company appeals, and its notice of appeal includes both the order conditionally denying its motion and also the order extending the time for the filing of plaintiff's consent to a reduction of the verdict.

1. The accident occurred between 7 and 8 p. m. of November 9, 1929, on Central avenue, Minneapolis, between its intersections by Spring street and Summer street. The cab was going north and hit Kolodka while he was crossing Central avenue between the intersections. Central avenue carries double street car tracks; but, at this time, there was neither street car nor automobile, other than defendant's cab, in sight on the avenue. The testimony concerning the speed of the cab and some other circumstances is so far in disagreement that the question of Lombard's negligence was for the jury. The leading argument for appellant is that the decedent was guilty of contributory negligence as a matter of law. Stressed is his attempt to cross between intersections. But pedestrians are not yet law violators in walking across or upon Minneapolis streets between intersections. There may be cases where congestion of traffic and other factors will make negligence appear as matter of law, but this is not one of them. The decedent was hit by the cab just as it was rounding, or had left, a curve on Central avenue. It was for the jury to determine at what speed it was traveling, the testimony presenting the usual conflict on that issue. The presumption against decedent's negligence (to be discussed) would justify the conclusion by the jury that he looked in the direction, south, from which the car was coming, saw it, and concluded that he might cross in safety. If he did so, it cannot now be said that he was negligent as matter of law. Recently, in Larson v. Fox, 250 N. W. 449 (opinion filed October 6, 1933), we held that a pedestrian crossing Superior street, the main traffic artery of Duluth, in the nighttime, when crossing signals were against him, and when there was considerable traffic, was not demonstrably negligent. The rationale of that decision bars a holding otherwise as to the decedent in this case. In the former the plaintiff had the benefit of no presumption of due care; whereas, here plaintiff has that aid.

2. In the record is the testimony of three eyewitnesses of the accident. All appear to have been from 150 to 160 feet distant from the scene. It was for the jury to determine the accuracy of their observations and the credibility of the resulting testimony. The court, in its charge, gave plaintiff the benefit of the presumption that decedent was not contributorily negligent. It is now urged for appellant citing 17 C. J. 1304, that the presumption "does not apply where there are eyewitnesses to the accident, or where the surrounding facts and circumstances show to the contrary, or where plaintiff's evidence suggests contributory negligence on the part of deceased." In so far as it makes the presence of...