McKnight v. City of Duluth

• Decision Date: 07 November 1930
• Docket Number: No. 28131.,28131.
• Citation: 181 Minn. 450,232 N.W. 795
• Parties: McKNIGHT v. CITY OF DULUTH.
• Court: Minnesota Supreme Court

232 N.W. 795

181 Minn. 450

McKNIGHT v. CITY OF DULUTH.

No. 28131.

Supreme Court of Minnesota.

November 7, 1930.

Appeal from District Court, St. Louis County; E. J. Kenny, Judge.

Action by Alex G. McKnight against the City of Duluth. From an order denying its alternative motion for judgment or a new trial, defendant appeals.

Affirmed.

Bert W. Forbes, Harry E. Weinberg, and John F. Ball, all of Duluth, for appellant.

Lewis, Hunt & Palmer and John Swinland, all of Duluth, for respondent.

OLSEN, C.

Defendant appeals from an order denying its alternative motion for judgment or a new trial.

The action is one to recover damages for personal injury and destruction of property claimed to have been caused by negligence on the part of the defendant in failing to maintain and keep one of its streets in a reasonably safe condition for travel. Plaintiff recovered a verdict. The motion for judgment in defendant's favor or, if that be denied, then for a new trial, was in all things denied, and this appeal followed.

1. It is urged that the verdict is not sustained by the evidence and is contrary to law on two grounds: (1) That the evidence is insufficient to sustain the finding that the defendant was guilty of negligence; (2) that the evidence shows that plaintiff was guilty of contributory negligence as a matter of law.

Plaintiff suffered injury to his person and damages to his automobile by coming into an unguarded gutter or ditch alongside the pavement in the street and running against a raised iron cover of a catch-basin outlet in the gutter, whereby his automobile swerved from the street and was precipitated into a ravine. We shall not go into a detailed recital of the evidence. It is sufficient to say that, upon the evidence presented, the defendant's negligence and plaintiff's contributory negligence were questions of fact for determination by the jury, and the evidence sustains the jury's findings thereon.

The point is made that it is not charged that the street improvement as originally made was defective in plan or construction, so as to base any negligence on that ground. But negligence in maintaining the street in a defective and dangerous condition is clearly charged and is sufficient.

2. This leaves for consideration the errors claimed to have occurred at the trial. It is assigned that the court erred in receiving in evidence the photographs, Exhibits B, C, D, E, F, G, I, J, and K. These photographs were taken a considerable time after the accident, and some of them incidentally showed that, after the accident, the city had erected a barrier between the pavement and the gutter or ditch to protect travel from coming into the gutter. It is the general rule that evidence of repairs made or precautions taken subsequent to an injury should not be admitted to prove a negligent condition at the time of the injury. 4 Dunnell, Minn. Dig. (2d Ed.) § 7055, and note 9. The exhibits were not offered, however, for the purpose of showing a negligent condition at the time of the injury, but for the limited purpose of showing the width of the street and general location of the place of the accident, the relative location and position of two catch-basins, and the iron plate...