Moeller v. St. Paul City Ry. Co.

• Decision Date: 20 October 1944
• Docket Number: 33858.
• Parties: MOELLER v. ST. PAUL CITY RY. CO. et al.
• Court: Minnesota Supreme Court

16 N.W.2d 289

218 Minn. 353

MOELLER
v.
ST. PAUL CITY RY. CO. et al.

No. 33858.

Supreme Court of Minnesota

October 20, 1944

[16 N.W.2d 290] [Copyrighted Material Omitted] [16 N.W.2d 291]

Syllabus by the Court.

1. Upon the record before us, contributory negligence on the part of decedent does not appear as a matter of law, and the evidence sustains the finding of the jury that defendants failed to establish it.

2. There was no error in the court's instruction as to the presumption of law of due care on decedent's part.

3. The submission of a certain statute under the facts herein, absent any exception thereto, was not error, following Greene v. Mathiowetz, 212 Minn. 171, 3 N.W.2d 97.

4. There was no error in the admission of the testimony of an expert as to the speed of the streetcar, notwithstanding he had not witnessed the accident, had never operated a streetcar, and was not familiar with the character of its brakes.

5. Verdict of $8,925 in a death case Held not excessive.

Appeal from District Court, Ramsey County; Clayton Parks, Judge.

[218 Minn. 354] R. T. Boardman, of Minneapolis, and C. J. Menz, of St. Paul, for appellants.

Clifford W. Gardner, of St. Paul, and Neil M. Cronin, of Minneapolis, for respondent.

YOUNGDAHL, Justice.

In an action for damages for death by wrongful act, defendants appeal from an order denying their alternative motion for judgment non obstante or a new trial.

On February 27, 1943, at about 11:40 p.m., Peter A. Moeller was struck by a streetcar of defendant company and fatally injured while crossing University avenue at Hampden, in St. Paul. He died in the ambulance en route to the hospital. During the day, decedent had been working at the Louis F. Dow Company plant, located on the southeast corner of the intersection. He left his employment about 11:30 p.m. and stood near a mailbox on the southeast corner of the intersection waiting for a westbound streetcar. Shortly before the accident, the night watchman of the Dow Company observed him standing near the mailbox, looking in an easterly direction, and also saw him walk toward the curb, step into the street at the crosswalk for pedestrians, and start to walk north across University, but he did not observe decedent after he left the curb.

The evidence shows without dispute that decedent was struck by the right front part of the streetcar and hurled into the air. He landed near the northwest corner of the intersection. The only eyewitness to the accident was the motorman, whose experience in operating a streetcar was of two months' duration. He testified that when the streetcar approached Hampden the automatic semaphore registered the green 'Go' sign for traffic on University avenue and that the streetcar was then traveling about 25 miles per hour. His testimony as to where he first saw decedent was rather vague and uncertain. Although he was just giving an estimate, he changed his testimony several times. At one time during the trial he [218 Minn. 355] stated that he saw decedent about five to ten feet away and to the left side of the streetcar. Later, he said he saw him about five to ten feet to his left and about 30 feet ahead of the streetcar. Still later, he said he first saw him about 20 to 25 feet ahead and on the southerly rail of the eastbound track. Then, again, he stated that he saw him about 25 to 30 feet away. He was not sure whether the streetcar was 15 or 50 feet east of the intersection when he claims to have first seen him. He testified that decedent was running as he approached the tracks and jumped onto the fender as he was struck. He said further that when he saw decedent he released the power and applied the air and sand. He placed the point of impact near the easterly curb line of Hampden, and stated that from that point, with the power released and the brakes and sand applied, the streetcar traveled through the intersection and came to a stop with the back end about 35 or 40 feet from the westerly crosswalk of Hampden. The police officers who arrived at the scene shortly after the impact [16 N.W.2d 292] placed the position of the streetcar approximately 200 feet from the point of impact.

From a point several hundred feet east of Hampden there is a decline toward the west in the grade of University avenue, which tapers off in the last block before Hampden to a slight one. On the night of the accident the weather was clear and the street dry.

The motorman's testimony as to speed and where and when he first saw decedent was at variance with a statement he admitted making to the police officers shortly after the accident and at the scene thereof. He then stated that he did not see decedent until he was right in front of the streetcar, and he said nothing about decedent running. He further stated that the streetcar was traveling 15 miles per hour.

1. In defendants' brief and at the oral argument they frankly concede that there was sufficient evidence of defendants' negligence to create a fact issue for the jury. They strenuously contend, however, that decedent was guilty of contributory negligence as a matter of law. The fallacy in defendants' argument is the premise of fact, which we do not believe is justified by the evidence. For [218 Minn. 356] example, defendants assert: 'There is no dispute but that this accident happened while Mr. Moeller was crossing University avenue against the semaphore.' The fact is that there is a real dispute on this question. Plaintiff denies that the semaphore was at 'Stop' for decedent when he left the curb. There is no direct testimony on this point. The only basis for defendants' position is the inference which is drawn from the testimony of the motorman, who testified that the sign was on 'Go' for University avenue traffic as the streetcar approached Hampden. That, in itself, does not conclusively establish that the sign was on 'Stop' for decedent when he started to cross the intersection. It is just as reasonable to infer that the sign was on 'Go' for him. He had traversed approximately one-half the width of University avenue from the time he left the curb until the impact, or a distance of approximately 35 feet. The sign may well have been on 'Go' for him when he left the curb, and changed while he was covering this distance. At any rate, under the circumstances, the fact that the sign read 'Go' for the motorman as he approached the intersection does not establish without dispute that it read 'Stop' for decedent when he left the curb.

Then, again, defendants assert: 'The undisputed evidence also shows that Mr. Moeller was running as he approached the tracks, and jumped onto the fender as he was hit.' Defendants overlook the fact, however, that this testimony was at variance with what the motorman admitted he stated to the police officers at the scene of the accident--a time when his recollection of what transpired should have been better than it was at the trial. He said to them that he did not see the deceased until he was 'just in front of the streetcar' and failed to mention anything about decedent running.

Defendants rely upon the rule of O'Leary v. Wangensteen, 175 Minn. 368, 221 N.W. 430, that the court or jury cannot disregard the positive testimony of an unimpeached witness. In view of the testimony here disclosed, we do not see how defendants can claim the benefit of this rule. Rather, we think, the case comes within one of its exceptions, namely, that such uncontradicted testimony [218 Minn. 357] may be disregarded if, from the facts and circumstances established by the record, its improbability or inconsistency furnishes a reasonable ground for so doing. If testimony contains improbabilities and contradictions which alone, or in connection with other facts and circumstances in the evidence, furnish a reasonable ground for doubting its credibility, a trier of fact need not accept the testimony as true merely because there is no direct evidence contradicting it. 6 Dunnell, Dig. & Supp. s 10344a, and cases cited. There is no disagreement as to the rule itself. The difficulty arises in its application and in the fact that it admits of many exceptions. In the recent case of In re Estate of Calich,214 Minn. 292, 296, 8 N.W.2d 337, 340, we approved the following statement from 20 Am.Jur., Evidence, s 1180:

'* * * Justice does not require a court or jury to accept...