McCarty v. Village of Nashwauk
| Decision Date | 17 January 1969 |
| Docket Number | No. 41003,41003 |
| Citation | 164 N.W.2d 380,282 Minn. 262 |
| Parties | Florence McCARTY, Appellant, v. VILLAGE OF NASHWAUK, Respondent. |
| Court | Minnesota Supreme Court |
Syllabus by the Court
1. Upon a proper foundation, evidence of the absence of prior accidents resulting from an alleged defect in a public sidewalk during the period when conditions with respect to the sidewalk were the same is admissible as proof that the alleged defect was not dangerous and that the municipal corporation alleged to be responsible for the condition was not reasonably chargeable with knowledge of its dangerous character.
2. Where the theory that a person injured as a result of a fall on a public sidewalk was not entitled to recover against a municipal corporation because of the provision of Minn.St. 466.03, subd. 2, excluding liability on the part of the municipal corporation where the claim for injury is covered by the Workmen's Compensation Act, was not properly presented to or ruled upon by the district court, determination of the question on appeal would be premature.
O'Leary, Trenti, Berger & Carey, Virginia, Helgesen, Peterson, Engberg & Spector and Avron L. Gordon, Minneapolis, for appellant.
John P. Weber, Grand Rapids, Marshall B. Thornton, Nashwauk, for respondent.
Heard before KNUTSON C.J., and NELSON, ROGOSHESKE, SHERAN, and FRANK T. GALLAGHER, JJ.
Appeal from an order of the district court granting a new trial exclusively for errors of law. The order is appealable as of right. Rule 103.03(e), Rules of Civil Appellate Procedure.
In an action instituted by Florence McCarty against the village of Nashwauk, a municipal corporation, for personal injuries sustained as the result of a fall on a public sidewalk, the jury returned a verdict for plaintiff in the amount of $13,500. A motion for a new trial was made upon the ground, among others, that the trial judge erred in sustaining objections to testimony by defendant's witnesses which, if received, would have supported a jury finding that prior to the accident giving rise to the litigation, defendant had no actual or constructive knowledge of any other fall at the accident site. The trial judge granted the motion, stating in his memorandum that the order granting the new trial was predicated solely on errors of the court as to matters of law.
1. We agree with the trial judge that the following statement of this court appearing in Nubbe v. Hardy Continental Hotel System, 225 Minn. 496, 497, 31 N.W.2d 332, 333, is applicable to the present situation:
'Evidence of the absence of prior accidents resulting from the same physical defect or inanimate cause, under substantially similar circumstances, is admissible to prove that such defect or cause was not dangerous or likely to cause such accidents, and further to prove that the person responsible for the defective condition was not reasonably chargeable with knowledge of its dangerous character.'
The rule assumes, of course, that the witness testifying as to the absence of prior accidents was in...
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