M'Killop v. Duluth St. Ry. Co.

• Citation: 53 Minn. 532
• Parties: ALEXANDER McKILLOP <I>vs.</I> DULUTH STREET RAILWAY CO.
• Decision Date: 21 June 1893
• Court: Supreme Court of Minnesota (US)

Page 532

53 Minn. 532

ALEXANDER McKILLOP vs. DULUTH STREET RAILWAY CO.

Supreme Court of Minnesota.

Argued June 9, 1893.

Reversed June 21, 1893.

Appeal by defendant, the Duluth Street Railway Company, from an order of the District Court of St. Louis County, J. D. Ensign, J., made December 10, 1892, denying its motion for a new trial.

The plaintiff, Alexander McKillop, brought this action to recover damages for the loss of his left foot on February 4, 1892, under the wheels of one of defendant's electric railway cars, while he was lying after dark on the track. He was at work for the Scott & Holston Lumber Company driving a team and sleigh delivering lumber and mill stuff to its customers. He drove to West Duluth and delivered a load, and claimed that on his return, about seven o'clock in the evening, his team ran away, and the toe of his sled caught against the track of defendant's road, and he was thrown out and rendered sick and dizzy, and in that condition attempted to cross the railway tracks to take a car home; that these tracks were negligently constructed several inches above the then existing surface of the street, and he fell over them and became unconscious, and while lying in that condition was negligently run over, and so injured that his left foot had to be amputated just below the knee. He claimed the motorman should have seen him and stopped the car in time to avoid injuring him.

On the trial defendant introduced evidence tending to show that the plaintiff was intoxicated at the time of the injury, and fell from his sleigh and got onto the track because of that condition. Henry Cody, a witness for defendant, testified that he saw the plaintiff lying in the road just before he was injured. He went to him and picked him up, and offered to take him home, but plaintiff declined, saying he must go and catch his team. He leaned on the witness unsteadily, and staggered as he started off. Witness said he had an opinion whether plaintiff was drunk or not. He was then asked, "What is your opinion upon that subject?" This was objected to as incompetent, irrelevant and immaterial. The Judge sustained the objection. To this ruling the defendant excepted, and offered to show that from the conduct, motion and speech of the plaintiff at the time, the witness thought, and still thinks, that plaintiff was drunk. To this evidence plaintiff objected. The Judge excluded it, and defendant excepted to the ruling.

The defendant then offered to show that its tracks were laid upon a grade established by stakes driven by the city engineer, acting on behalf of the city; that, when the tracks were laid, a contract had been awarded by the city for paving the street on a grade conforming to the rails as laid, and should have been completed in 1891, but was delayed by controversies as to the issuing and sale of city bonds to pay for the work. The plaintiff objected to the evidence, and it was excluded, and defendant excepted to the ruling. This was defendant's fourth assignment of error mentioned in the opinion.

The plaintiff's witness Labby stated that he was conductor on the car following the one that ran onto the plaintiff; that, after the accident, he went to the end of his car for the purpose of ascertaining how far he could plainly discern any object ahead upon the track. He was then asked to state how far he could see plainly any object upon the track there. To this question defendant objected as irrelevant and misleading. The objection was overruled and defendant excepted, and the witness said two hundred feet.

The defendant duly excepted to that part of the charge to the jury specified in the ninth assignment of error. It was as follows: "In this connection it is a fact for you to consider, whether the agent or the motorman of the defendant had knowledge that there was at that time, on the street or on its line of railway, a man who was laboring under some disability, either drunkenness or illness, who was to be watched for, and that care was to be taken to avoid injuring him if found upon the track; and if the defendant or such agent had reasons to apprehend that such a man might be found upon said tracks, it was his duty to use such care and diligence as would be necessary to secure the safety of such man."

Plaintiff had a verdict...