Nygren v. Minneapolis St. Ry. Co.

• Decision Date: 26 March 1954
• Docket Number: No. 36166,36166
• Parties: NYGREN v. MINNEAPOLIS ST. RY. CO.
• Court: Minnesota Supreme Court

Page 560

63 N.W.2d 560

241 Minn. 485

NYGREN v. MINNEAPOLIS ST. RY. CO.

No. 36166.

Supreme Court of Minnesota.

March 26, 1954.

Syllabus by the Court.

1. The owner or operator of a motor vehicle is not entitled to the benefit of the statutory right-of-way rule where the vehicle was standing still on the street when a discharged passenger had already commenced to cross in front of it. The privilege conferred by the right-of-way rule is that of an immediate crossing by a moving pedestrian or vehicle, not of a future crossing by a standing one after first starting and moving.

2. Where a trial court in its charge refuses to give a party's requested instructions and the court charges the jury in accord with the ordinary rules of negligence, if no objections or exceptions are taken to the instructions as given and if no specific errors therein are alleged in the assignment, such instructions to that extent become the law of the case for purposes of appeal.

3. It is only in the clearest of cases where the facts are undisputed and only one conclusion can be drawn from them that the question of contributory negligence becomes one of law.

Freeman, Larson & Peterson and Frank X. Cronan, Minneapolis, for appellant.

Sullivan, Stringer, Donnelly & Sharood, St. Paul, for respondent.

NELSON, Justice.

Plaintiff, Christine Nygren, brought suit against the Minneapolis Street Railway Company to recover for damages sustained as the result of her being struck, while a pedestrian, by a bus owned and operated by defendant company. The case was tried in the district court for Hennepin county, and the jury returned a verdict in favor of plaintiff. The defendant company appeals from an order of the court below denying its motion for a new trial.

In considering the questions raised here by defendant, the most favorable aspect must be ascribed to plaintiff's evidence.

Plaintiff at the time of the accident was a widow, 73 years of age, residing at 2740 Twenty-seventh avenue south, Minneapolis, Minnesota. On the date of the accident she boarded one of defendant's buses at Seventh and Hennepin in said city around three o'clock in the affternoon. She had made a purchase downtown of two packages of coffee weighing five pounds each to send to relatives in Sweden, and she carried them with her in a shopping bag. She intended to proceed east on Franklin avenue as far as Twenty-seventh avenue and at that point to change and board a southbound streetcar which would discharge her at a point near her home.

On the day in question, when the bus approached the intersection of Franklin avenue and Twenty-seventh avenue traveling easterly, it stopped at a point approximately 65 feet back from the west crosswalk of the intersection near the center of the street, about where the old streetcar tracks were located. There the motorbus operator opened the doors and discharged the passengers without proceeding, or waiting to proceed, to the south curb and up to the west crosswalk. When the motorbus was thus stopped, there was ahead of it to its right and near the curb a panel truck. Ahead of the truck was another bus, near the curb and just back of the west crosswalk. Those vehicles were stopped at that point awaiting the signal to proceed across. The ordinary place or point for the operator of the bus to discharge his passengers was at the curb near the crosswalk, but it appears from the testimony that the operator here intended to turn to the left to go north onto Twenty-seventh avenue and that he stopped at the point where he did because it was advantageous to him in making the turn. There was at the time a two- to three-foot embankment of snow along the south curb of Franklin avenue across from the point where the plaintiff was discharged.

Although the driver of the bus testified that the plaintiff was the only passenger discharged from the front door at this point, several witnesses testified that there were from three to five or six other passengers discharged from the front door at the same stop. Among them was a woman who lived in the same vicinity as plaintiff, who saw her on the bus and who, with other passengers, proceeded around the front of the bus to the left as plaintiff did, going northerly across the street for the purpose of boarding a southbound streetcar on Twenty-seventh avenue.

When the plaintiff alighted from the front door of the bus, it was standing still; and it was standing still when she proceeded to walk in front of it, turning to her left to cross Franklin avenue to the north curb. The testimony is that the other passengers did the same with the exception of one who proceeded across the snow to the curb and sidewalk on the south side of Franklin avenue. When the plaintiff was at a point somewhere in front of the bus, it started to move forward without any warning audible or otherwise. Plaintiff testified that the bus then struck her on the right leg and that her right leg was injured by the bus running into her and over a part of her leg and goot. She also testified that her left leg was hurt, that it was bruised and sore especially around the knee, but that this leg was not fractured. Her testimony indicated a somewhat confused memory with respect to which leg met the first contact with the bus. The injury to her right leg aggravated a diabetic condition which made amputation necessary later.

None of the plaintiff's witnesses, including the woman who got off the bus at the same time and several students who were proceeding easterly on the south sidewalk of Franklin avenue, saw the accident the instant is happened. None of them saw her fall or saw her at the time she was struck by the bus. Their testimony was that they saw the passengers being discharged and that nearly all proceeded to the left in front of the bus to cross the street as plaintiff did; and there was testimony that as she proceeded she was carrying her shopping bag. They first saw that there had been a collision between the bus and a pedestrian when they heard a scream, and then they witnessed the result of the accident.

The driver of an oncoming westbound bus on Franklin avenue testified for the defendant and stated that he signaled the driver of the bus that collided with plaintiff to stop and that the bus was stopped and backed up. The driver of the defendant's bus stated that he started up pursuant to the traffic signals at the intersection. That there was no warning or signal given by the operator of the bus has been practically conceded. The driver of the westbound bus testified that he saw the plaintiff cross in front of the bus only one foot from its front, where she would have been in a blind spot to the driver. He also testified that he saw the plaintiff fall rather than being struck by the moving bus. The driver of defendant's bus admitted in his testimony that he knew from past experience that many passengers alighted at this intersection and crossed to the north in order to make the transfer to a southbound streetcar. He also testified that he did not at any time see plaintiff, either immediately after she got off the bus or when upon the street crossing in front of the bus 1--2. The defendant made a motion for a directed verdict at the close of all the testimony, which motion was denied. The defendant also made an oral request, which was taken down by the court reporter, that the court charge the jury in respect to M.S.A. § 169.21, subds. 1 and 3, of the traffic code. This was denied by the court. The record shows that this request was made in chambers prior to any jury argument. No written requests were made and submitted to the court, and no objections were made or exceptions taken to the charge. After the trial court completed its charge, counsel on both sides were asked...