Oddie v. Mendenhall
| Decision Date | 28 June 1901 |
| Docket Number | 12,591 - (153) |
| Citation | 86 N.W. 881,84 Minn. 58 |
| Parties | LIZZIE ODDIE v. LUTHER MENDENHALL |
| Court | Minnesota Supreme Court |
Action in the district court for St. Louis county against defendant as receiver of Duluth Street Railway Company, to recover $16,000 damages for personal injuries. The case was tried before Ensign, J., and a jury, which rendered a verdict in favor of plaintiff for $2,500. From an order denying a motion for judgment in his favor notwithstanding the verdict, or for a new trial, defendant appealed. Affirmed.
Contributory Negligence.
Evidence considered, and held that the question of plaintiff's contributory negligence was an issue of fact for the jury and it was not error for the court to refuse to withdraw that question from their consideration.
The violation of a city ordinance requiring the performance of a duty may furnish evidence of negligence, although such ordinance is not, as a matter of law, conclusive upon that issue, which must be determined in connection with all the evidence in the case.
Request to Charge Jury -- Objection Waived.
Where instructions are presented to the court at the close of the evidence, and either party waives objections to any request of the opposite party, which the court thereupon gives, the party so waiving objection may not afterwards reserve an exception thereto without leave of court first obtained.
Greene & Wood, for appellant.
John Jenswold, Jr., for respondent.
Action for personal injuries sustained by plaintiff, who was run upon and thrown from a carriage by one of defendant's street cars. She recovered a verdict. Defendant moved for a new trial or judgment in the alternative, which was denied. From this order the cause is brought here for review upon the entire record.
Plaintiff resided at Duluth. Her brother, Harry George, who was visiting that city, invited her to take an evening drive. He procured a horse and carriage from a livery, and in company with his sister drove through the city towards West Duluth, until they reached the Asbury Methodist Church, on Raleigh street, over which street, at this place, there was a single track of defendant's electric street railway. The distance between the sidewalk curbs of the street at the church was forty-two feet. It was twelve feet between the north rail and the curb next to the church where the injury to plaintiff occurred. The plaintiff was wholly unaccustomed to the use of horses or their management, but relied entirely upon her brother, who drove. When the carriage arrived at the curb in front of the church, the brother, having occasion to stop there, threw the lines upon the dashboard, leaving the horse facing west and his sister in the carriage, stepped out, ran up the church steps (nine in number), and went into the vestibule, when he was recalled by an outcry from his sister, who was alarmed at the actions of the horse, occasioned by noise produced from a street car coming from the rear, which was operated by a motorman, and run at the speed of twelve miles an hour. The motorman saw the carriage, with the lady, about one hundred and twenty-six feet before reaching it. He continued to sound the gong, frightening the horse, which became fractious, and alarmed plaintiff, who called to her brother twice. The brother immediately turned from the church, rushed down to the sidewalk, seized the horse by the bridle, and succeeded in getting the hind wheel of the carriage from the track, but the horse again backed the carriage wheels upon the rails. The motorman kept sounding the gong, and rushed his car upon the carriage, struck and overturned it, throwing plaintiff upon the sidewalk, from which she received the injuries complained of. About the time of the collision the motorman put on the brakes, stopping the car with a jerk, after it had run its length after striking the carriage. The above summary of the evidence states the facts most favorable to the plaintiff, as the verdict requires.
Upon these facts defendant insists that plaintiff was, as a matter of law, guilty of contributory negligence in remaining in the carriage after her brother left it to enter the church; also that it was the duty of the court to have taken the case from the jury, and ordered a verdict in defendant's favor, or to have ordered judgment for defendant. The rather subtle process of reasoning by which counsel reach this conclusion is based partly upon the effect of an ordinance of the city of...
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