Kennedy v. St. Paul City Ry. Co.
| Citation | 59 Minn. 45 |
| Decision Date | 05 November 1894 |
| Docket Number | No. 8939.,8939. |
| Parties | CHARLES KENNEDY <I>vs.</I> ST. PAUL CITY RAILWAY CO. |
| Court | Supreme Court of Minnesota (US) |
April 28, 1893, the plaintiff Charles Kennedy was a laundryman. He undertook to drive his laundry wagon across the street railway tracks in Wabasha street, between Eighth and Ninth streets, St. Paul. An electric street car struck his laundry wagon and overset it and hurt plaintiff's left foot. He brought this action to recover damages claiming he was exercising due care and that defendant's motoneer was careless and negligent and caused his injury. Plaintiff obtained a verdict for $3,100. Defendant moved for a new trial. Being denied it appeals. The discussion here was mainly on the evidence, whether or not it supported the verdict.
Munn, Boyesen & Thygeson, for appellant.
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J. C. Mangan, and John D. O'Brien, for respondent.
This is one of a class of cases frequently appealed to this court, involving issues purely of fact, where we have considerable doubt whether those issues were rightly decided, but the evidence is such that an appellate court would not be warranted in disturbing the verdict of the jury. In determining whether the injury to the plaintiff was caused by his own negligence or by that of defendant's servants, the most important, if not the decisive, question was whether the plaintiff attempted to drive across the railway track in front of an approaching car already in motion, or whether, when he drove upon the track, the car was standing still, but was afterwards started, and struck his vehicle before he had time to get across. If the former was the fact, he could not recover, for it would be the grossest kind of negligence to attempt to drive across the track right in front of an approaching car, and within so short a distance of it that the motoneer could not, in the exercise of reasonable diligence, stop the car in time to prevent a collision. On the other hand, if the car was standing still when plaintiff started across the track, we think that, notwithstanding the fact that he knew that the car would shortly start, the questions of the motoneer's negligence and of plaintiff's contributory negligence were for the jury.
While we are impressed, as the trial judge seems to have been, with the feeling that the evidence of contributory negligence was quite strong, yet, if plaintiff is to be believed (which was a question for the jury), his act was not an attempt to swing across the track in front of an approaching car, nor an attempt to cross heedlessly, without regard to existing conditions, but an attempt to cross in front of a car that was standing still, and which did not start until his horse was upon the track. In view of the relative rights of street cars and other vehicles in the streets, as defined by this court in Shea v. St. Paul City Ry. Co., 50 Minn. 395, (52 N. W. 902,) and Watson v. Minneapolis Street Ry. Co., 53 Minn. 551, (55 N. W. 742,) and in view of the further well-known fact that, in many of our city thoroughfares, street cars pass so frequently that if a person had no right to cross in front of a standing car he might have to wait indefinitely, no court could say, as a matter of law, that to do so was negligence. Other vehicles being in the lawful use of the street, as well as street cars, reasonable care would require that the motoneer, before starting his car, should look to see that the track immediately in front of him is clear, and, if he see any one then crossing it, to wait long enough to avoid a collision.
Taking, as a basis of calculation, the testimony of witnesses as to the relative rates of speed of the car and of plaintiff's vehicle, and the distance traveled by each from its starting point, counsel for defendant attempts a mathematical demonstration that the car must have been in motion before plaintiff drove upon the track. This kind of an argument is frequently resorted to in this class of cases, and, like any other mathematical demonstration, would be conclusive, if it was certain that the premises assumed were correct. But experience teaches that witnesses are usually exceedingly inaccurate in their estimates of short distances and short periods of time, as well as of rates of speed, and hence arguments founded on such bases are often fallacious, and seldom conclusive.
Defendant also claims that the only allegation of negligence in the complaint is the failure of the motoneer to ring the gong before starting the car, and that upon that issue the plaintiff failed to establish his case by evidence. Without stopping to consider whether this is the correct construction of the language of the complaint, it is enough to say that it is apparent from the record that the case was not tried upon any such narrow...
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