Nees v. Minneapolis St. Ry. Co.

• Decision Date: 08 December 1944
• Docket Number: No. 33886.,33886.
• Citation: 16 N.W.2d 758,218 Minn. 532
• Parties: NEES et al. v. MINNEAPOLIS ST. RY. CO.
• Court: Minnesota Supreme Court

16 N.W.2d 758

218 Minn. 532

NEES et al. v. MINNEAPOLIS ST. RY. CO.

No. 33886.

Supreme Court of Minnesota.

December 8, 1944.

Appeal from Municipal Court of Minneapolis; D. E. LaBelle, Judge.

Action by Leo Nees and another, co-partners doing business as Nees Brothers, against Minneapolis Street Railway Company, to recover damages to plaintiff's truck arising out of a collision between it and defendant's streetcar. From an order denying a new trial after granting defendant's motion for a directed verdict in its favor, the plaintiffs appeal.

Reversed.

O. A. Brecke and E. T. Chesnut, both of Minneapolis, for appellants.

Ralph T. Boardman and John F. Dulebohn, both of Minneapolis, for respondent.

STREISSGUTH, Justice.

Action for damages to plaintiffs' automobile-truck arising out of a collision between it and a streetcar at a street intersection in Minneapolis. At the close of plaintiffs' proof, the court granted defendant's motion for a directed verdict in its favor. Plaintiffs appeal from an order denying a new trial.

On January 14, 1943, plaintiffs' truck was traveling at a speed of 15 miles per hour southeasterly on Riverside avenue, approaching the common intersection of Riverside and Twenty-fifth avenue south with Eighth street south. Ahead of it was a streetcar which had stopped on the near side of the intersection. When the truck had approached to within 100 feet of the streetcar, the semaphore in the intersection turned to green and the streetcar started across the intersection. About the same time, with the semaphore against them, a woman and her five-year-old child came running into the intersection from the right, or south, along the east side of Twenty-fifth avenue extended, apparently intending to board the streetcar. The streetcar stopped suddenly and without signal or warning, in the intersection proper, just beyond the semaphore.

The entire area within the intersection was icy and slippery. The width of the intersection at the point where the woman and child started to cross it was approximately 107 feet; the distance from the curb from which they stepped to the southerly and nearest streetcar track was over 60 feet. The woman and child were hidden from the motorman's and truck driver's view by a building until the streetcar and truck respectively entered the intersection.

At the time the truck entered the intersection, it was about 20 or 30 feet behind the streetcar, traveling at a speed of 10 or 12 miles per hour, astraddle one of the streetcar tracks. The driver had just turned his truck slightly to the right with a view to passing the streetcar when he observed the presence of the pedestrians. When at about the same instant the streetcar — then only 10 or 15 feet ahead — came to a sudden stop, the driver, unable likewise to stop his truck because of the condition of the street, was confronted with one of three choices: either to continue straight ahead, to turn sharply to the right in an effort to encircle the pedestrians, or to turn to the left and hit the streetcar. He chose the latter course, and the truck collided with the rear of the streetcar. As he expressed it; "My interpretation would be to slide into the streetcar or this woman and child, and I slid into the streetcar." Later he admitted that "there might have been room between the woman and the curb," but turning to the right also involved the chance of hitting her and the child. To apply the brakes and continue straight ahead would definitely have endangered them, as they were only about 25 feet ahead of the truck, and, because of the condition of the street, the truck could not have been stopped within that distance.

The Minneapolis traffic ordinance (April 12, 1938) provides:

"Street cars and trackless trolley cars, except where otherwise specifically provided, shall be governed by the same rules and regulations as provided in this ordinance for vehicles and motor vehicles, only in so far as such regulations apply to speed, stopping at through streets and railroad tracks, and obeying signals of semaphores and rights-of-way and shall be entitled to the same rights and benefits of the ordinance as to warning, turning and stopping signals and rights-of-way, as any vehicle or motor vehicle in the streets and highways of this city." (Italics supplied.)

Substantially the same provisions are contained in the Minnesota highway traffic regulation act. Minn.St.1941, § 169.03, 5th paragraph, Mason St. 1940 Supp. § 2720-155(e). See, O'Neil v. Minneapolis St. R. Co., 213 Minn. 514, 521, 7 N.W.2d 665, 669.

Another ordinance requires that, with certain exceptions not material here, "street cars shall stop on the near side of street intersections to take on or discharge passengers." (December 2, 1927, as amended October 31, 1930.)

1. Whether the facts thus stated favorably to plaintiffs would have supported a verdict for them involves questions of negligence, contributory negligence, and causation, at first glance somewhat difficult of solution, but in fact relatively simple when the respective functions of court and jury are kept in mind. That negligence and contributory negligence are for the determination of the jury where the facts are disputed is commonplace. In fact, these issues remain the exclusive property of the jury though the facts are undisputed if different minds, in applying legal criteria of due care to the conduct of the parties, might reasonably arrive at different conclusions, or might reasonably disagree as to the inferences to be drawn from the facts. Bimberg v. Northern Pac. R. Co., 217 Minn. 187, 14 N.W.2d 410; 38 Am.Jur., Negligence, § 345; 4 Dunnell, Dig. & Supp. § 7048. It is only where different minds can reasonably arrive at but one result that these or any fact issues become questions of law justifying a trial court in directing a jury how they must be answered. 6 Dunnell, Dig. & Supp. § 9764.

2. While the act of the motorman in stopping the streetcar on the far side of the intersection or in the intersection proper in violation of the ordinance, under its express provisions, was not "negligence per se but * * * prima facie evidence of negligence only," such violation presented an issue for the jury's determination. A prima facie case imports negligence, and explanations are in order. Donahue v. Mazzoli, 27 Cal.App.2d 102, 80 P.2d 743. Even conceding the motorman's right to stop where he did, it was clearly his duty, in doing so, to exercise such caution as the traffic conditions demanded. See, Smith v. Yellow Cab Co., 285 Pa. 229, 132 A. 124. His act in suddenly stopping the streetcar in the intersection without signal or warning of any kind to the traffic behind presented an issue of fact as to his negligence, the determination of which depended upon whether the jury considered such act unnecessary and careless, or a reasonable act in the emergency, if any, created by the woman and child running for the streetcar. Christensen v. Hennepin Transp. Co. Inc., 215 Minn. 394, 10 N.W.2d 406, 147 A.L.R. 945. That defendant's vehicle was a streetcar instead of a motor vehicle, as in the cited cases, would not absolve the motorman from the common-law duty to exercise due care with respect to other traffic. In the Christensen case, it was said (215 Minn. at page 400, 10 N.W.2d at page 411, 147 A.L.R. 945):

"* * * Having exercised its right to enter the intersection when the `Go' signal was on, defendant could not abandon it without regard to the rights of others. The fact that the forward driver has entered an intersection may lead a driver to the rear to believe, and thus rely on the fact, that he intends to proceed across it. Entering and stopping therein causes the rear driver to be misled. Stopping in an intersection after exercising the right to proceed without giving proper signal of intention to stop is negligence as to other vehicles."

3. The reciprocal duties of the operator of a leading vehicle and the operator of a vehicle to its rear, simply stated, are these:

"* * * A leading vehicle has no absolute legal position superior to that of one following. Each driver must exercise ordinary care in the situation in which he finds himself. The driver of the leading vehicle must exercise ordinary care not to stop, slow up, nor swerve from his course without adequate warning to following vehicles of his intention so to do. The driver of the following vehicle, in his turn, must exercise ordinary care to avoid collision with vehicles, both those in front and those behind him. Just how close to a vehicle in the lead a following vehicle, ought, in the exercise of ordinary care, to be driven, just what precautions a driver of such a vehicle must in the exercise of ordinary care take to avoid colliding with a leading vehicle which slows, stops, or swerves in front of him, just what signals or warnings the driver of a leading vehicle must, in the exercise of due care, give before stopping or slowing up of his intention to do so, may not be laid down in any hard and fast or general rule. In each case except when reasonable minds may not differ, what due care required, and whether it was exercised, is for the jury." Cardell v. Tennessee Electric Power Co., 5 Cir., 79 F.2d 934, 936.

4. In testing acts of a motorman in the operation of a streetcar, juries and courts must necessarily take into consideration that streetcars do not have the mobility of an automobile. Both the ordinance and the statute recognize this fact in providing that streetcars shall be governed by statutory rules and regulations "only in so far as such regulations apply to speed, stopping at through streets and railroad tracks, and obeying signals of semaphores and rights-of-way." But the fact that there is no statutory rule or regulation defining the duty of a streetcar operator in a given situation cannot absolve a streetcar company or its motorman from the duty of exercising reasonable or ordinary care in operating its cars upon...