Newton v. Minneapolis Street Ry. Co., 28708.

CourtSupreme Court of Minnesota (US)
Citation243 N.W. 684,186 Minn. 439
Docket NumberNo. 28708.,No. 28709.,28708.,28709.
PartiesNEWTON v. MINNEAPOLIS STREET RY. CO.
Decision Date08 July 1932

Appeal from District Court, Hennepin County; Frank E. Reed, Judge.

Separate actions by Walter H. Newton individually, and in behalf of his minor son, John Marshall Newton, against the Minneapolis Street Railway Company, tried together. Verdicts in favor of the defendant. From orders denying motions for a new trial, plaintiff in each case appeals.

Orders reversed, and a new trial granted.

See, also, 240 N. W. 470.

Mortimer H. Boutelle, William A. Tautges, B. W. Wilder, and Robert J. McDonald, all of Minneapolis, for appellant.

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

HOLT, J.

Walter H. Newton brought these two actions against the Minneapolis Street Railway Company to recover damages, the main action being one in behalf of his minor son, John Marshall Newton, for the loss of his right leg, run over by one of defendant's street cars, on June 20, 1929. The other action is for damages Mr. Newton, the father, sustained in consequence of the son's injuries, such as surgical, medical, nurse, and hospital expenses and loss of services. Verdicts were returned in favor of defendant, and, from the orders denying motions for a new trial, plaintiff in each case appeals.

The two actions were tried together, and the appeals were submitted as one. We need only refer hereinafter to the action in behalf of the boy, John Marshall, who was nine years old at the time he met this sad misfortune. On the day mentioned, at about 6 o'clock in the afternoon, John Marshall was directed by his mother to go to a butcher shop and a grocery store on Hennepin avenue and Lake street for some meat and a few tomatoes. The boy lived on Calhoun boulevard, and the nearest route was east on Thirty-First street to Hennepin then north a block to the stores mentioned. He went on his errand upon a bicycle, which he had been riding a couple of months. The bicycle was a man's size. It was by most witnesses described as a bright afternoon, and the streets were dry. The records of the United States Weather Bureau showed that the afternoon was cloudy. But at that time of the year it has no significance as to vision two hours before sunset. It may be said that cloudy weather prevented the sun from dazzling the eyes of persons looking towards the west—the important direction so far as this accident is concerned. John Marshall got his meat and a paper bag of tomatoes, mounted his bicycle, grasping a package in each hand so as also to have hold of the handlebars, and proceeded south on Hennepin avenue along tracks of defendant which turn west on Thirty-First street. When he arrived at Thirty-First street, a west-bound street car was discharging passengers, and the boy undertook to go around the car on its left side. From here on the testimony is in conflict as to the relative position of the boy and the street car and the place of first contact with the car. The boy and some of plaintiff's witnesses testify that he passed around the street car while it was standing, and that he had reached a distance of from 10 to 15 feet in front of it, before it started; that the boy heard the street car start, and, while trying to angle off the track to the north, the car struck him, rolling him under the fender and onto the rail, so that one of the left wheels of the front truck severed his right leg above the knee. Plaintiff also introduced evidence that the boy was dragged some 30 feet before the car stopped. There is no dispute but that when the car stopped the boy's severed leg was directly against the rear left wheel of the front truck. The evidence is that the street car was backed a foot or so to release part of the leg. Defendant's evidence was to the effect that the boy passed the rear end of the street car as it was starting, and rode alongside in a wobbly fashion somewhat faster than the street car was traveling, and ran into the car just behind the front vestibule of motorman's cab. The motorman testified that he saw a shadow out of the corner of his left eye coming as far in front as the rear left window in the vestibule or cab, but could not make out what it was; that he immediately threw off the current, and as he so did he heard a scream and stopped the car. It was stopped with the front end some feet east of the alley running north and south in the block between Hennepin avenue and the next street west—some witnesses placed the front of the street car very near and others as far as 25 feet east of the alley. The distance from this alley to the west curb of Hennepin avenue is 135 feet. Thirty-First street is about 56 feet wide from curb to curb. From this bare outline it is readily seen that plaintiff's theory of recovery was that the boy, John Marshall, while proceeding westerly, ahead of the street car, was run down through the negligence of the motorman in failing to keep a proper lookout so as to warn the boy and control the speed of the car. On the other hand, the defense was that the boy never reached the front of the car, but ran his bicycle into the car at the rear of the front vestibule.

The errors assigned as grounds for a new trial are upon rulings during the trial; the giving and the refusing to give certain instructions; and misconduct of certain jurors.

After the boy had testified that, as he got 10 to 15 feet ahead of the standing street car, he heard it start, the court, on objection, excluded evidence as to warning by bell or gong not only from the boy, but from other witnesses by whom plaintiff offered to prove that no warning was given. We think this was error. Failure to give warning was alleged in the complaint. If the boy was moving on in front of the car, as plaintiff's evidence tends to show, the speeding up of the car so that it was likely to run him down without warning him by the means available to the motorman was certainly a fact to be considered by the jury on the issue of defendant's negligence. The court evidently thought that, since the boy was aware that the car was moving only 10 or 15 feet behind, the failure to warn him of that fact was of no consequence. It must be remembered that we are dealing with a child, who might overestimate his ability to outdistance the car and reach safety before being overtaken. The failure to give a signal, if the boy was in the position he claims, would also be persuasive evidence that the motorman was not attending his duties of keeping a vigilant lookout for persons in front of the car, for it is inconceivable that he would have proceeded had he seen the boy without giving the customary signals. Counsel for defendant, no doubt, now realizes that he led the court into error, for he has had the argument of plaintiff's counsel to the jury made a part of the settled case, and insists that, because of what was said by the court and counsel when this subject of warning was broached, no prejudice to plaintiff resulted. The moment plaintiff's counsel touched upon the matter of warning, defendant's counsel objected. Then this occurred:

"The Court: That issue is not in the case.

"Mr. Tautges: Well, there is no evidence that there was—

"The Court: There is no evidence that a gong was sounded, that is true.

"Mr. Boardman: That was not gone into— allowed to be gone into—and it is not within the issues. * * * It is not in the case the Court rules against it.

"Mr. Tautges: What I wanted to say to the jury was this, that under the circumstances, even though Marshall heard the car start up that naturally he would assume that the motorman wouldn't run him down, that the motorman would not run into the bicycle without at least attempting to give some warning."

It is true, the court said there was no evidence that a gong was sounded. But no evidence was allowed on that subject, though it was pleaded, and, under plaintiff's theory of the case, was material for him to prove. From what is above quoted the jury could not escape the thought that plaintiff had wrongfully attempted to prove the absence of warning signals, that it was not an issue in the case, and that plaintiff's counsel wrongfully alluded to it. That absence of warning is material in cases of this sort is indicated in Gray v. St. Paul City Ry. Co., 87 Minn. 280, 91 N. W. 1106; Peterson v. Minneapolis Str. Ry. Co., 90 Minn. 52, 95 N. W. 751; Howell v. Great Northern Ry. Co., 125 Minn. 137, 145 N. W. 804, 805. The case last cited was where the engineer saw children running back and forth over the track. One child, a year and a half younger than John Marshall, was run over. Judge Bunn, writing the decision, says: "Without much doubt the deceased also was aware of the train's approach. The ringing of bell or sounding of whistle was therefore unnecessary to inform them that the train was coming. But it does not follow that a special and distinctive warning whistle when the engine was near the crossing would not have sent the boys, including deceased, flying to places of safety." If the gong or whistle on this street car was not sounded, plaintiff ought to have the opportunity of establishing that as a fact and to make use of that fact to persuade the jury to adopt any legitimate inference that might be drawn therefrom. To the contention that the failure to warn was immaterial under the facts defendant cites Teal v. St. Paul City Ry. Co., 96 Minn. 379, 104 N. W. 945; Bloomquist v. Minneapolis Str. Ry. Co., 113 Minn. 12, 129 N. W. 130; Schrankel v. Minneapolis Str. Ry. Co., 144 Minn. 465, 174 N. W. 820; Anderson v. Minneapolis Str. Ry. Co., 150 Minn. 509, 185 N. W. 661. The sounding of the gong was said to be a question for the jury in the Teal Case. In the Bloomquist Case the appeal turned on the propriety of an instruction relating to willful negligence, and in the decision it is stated that, when the motorman discovered a collision was inevitable, he was so busy with...

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