Paul v. Faricy
| Decision Date | 14 April 1949 |
| Docket Number | No. 34751.,No. 34750.,34750.,34751. |
| Citation | 228 Minn. 264,37 N.W.2d 427 |
| Parties | PAUL et al. v. FARICY et al. |
| Court | Minnesota Supreme Court |
Appeal from District Court, Ramsey, County; Robert V. Rensch, Judge.
Actions by Dennis Wayne Paul, a minor, by Elmer L. Paul, his father and natural guardian, and by Elmer L. Paul, on his own behalf, against James L. Faricy, Edmen L. Green, A. O. Smith Corporation, and City of St. Paul, to recover for injuries sustained by the minor plaintiff and consequential damages suffered by his father when an automobile owned by defendant Green, driven by defendant Faricy, and sometimes used in the business of corporate defendant collided with pedestrian safety island on which minor plaintiff was standing and which island was designed and maintained by defendant city. From an order in each case denying city's blended motion for judgment non obstante verdicto or a new trial and for an order setting aside directed verdict in favor of corporate defendant and granting a new trial as to all defendants, city appeals.
Affirmed as to corporate defendant and reversed and new trial granted as to defendant city.
Bruce J. Broady, Corporation Counsel and Marshall F. Hurley, Asst. Corporation Counsel, both of St. Paul, for appellant.
Otis, Faricy & Burger, of St. Paul, for respondent James L. Faricy.
George L. Siegel, of St. Paul, for respondent Edmen L. Green.
John J. Sexton and Freeman & King, all of St. Paul, for respondent A. O. Smith Corporation.
Briggs, Gilbert, Morton, Kyle & Macartney of St. Paul, for respondents Paul.
In each of two separate actions — one by Dennis Wayne Paul, a minor, by Elmer L. Paul, his father, for damages for personal injuries to Dennis, and the other by the father for the recovery of expenses incurred by reason of the injuries to his son — brought against defendants and consolidated for trial, we have an appeal by defendant city of St. Paul from an order in each case denying its blended motion for judgment non obstante or a new trial and for an order setting aside the directed verdict in favor of defendant A. O. Smith Corporation and granting a new trial as to all defendants.
Defendants Edmen L. Green, owner of the car involved herein, and James L. Faricy, driver of the car, on and prior to the date of the accident, were employes of defendant A. O. Smith Corporation, hereinafter called the corporation, in its plant at the fairgrounds in St. Paul. Both were employed from 8 a.m. until 4:30 in the afternoon. Since the fall of 1945, by special agreement between Green and his employer, Green on his way to work picked up the corporation's mail at the main post office and with his car delivered it to the plant office. For this extra travel in the morning, he was given credit on his working time so that he was considered as having commenced work at 8 a.m., although he did not arrive at the plant until sometime between 8:30 and 9 a.m. In addition, he was allowed four cents a mile for eight miles of morning travel in picking up the mail. During the same time he agreed, without any special compensation or mileage allowance therefor, to post the corporation's daily outgoing mail at a postal station on his way home from work. At first, when he lived on Grand avenue, he deposited the mail at a postal station near Snelling and University avenues, which was located on his direct route home and required no extra travel. Prior to the date of the accident, however, Green moved to rural Ramsey county, and thereafter he posted the mail at a station near Snelling and Minnehaha, although such station was not on a direct route to his home. He also allowed other fellow employes of the corporation to use his car several times daily in the performance of the employer's business, for which the corporation paid him the usual four cents per mile.
On March 21, 1946, the day of the accident, shortly after the completion of the day's work at 4:30 p.m., Green as usual placed the corporation's outgoing mail in his car. Then, instead of driving directly to any postal station to deposit the mail, Green, accompanied by two fellow employes, James Kenny and defendant James L. Faricy — with the latter driving — started for Minneapolis for the purpose of purchasing for their own individual use war surplus overcoats for sale at a private home located in that city on Cedar avenue somewhere between Fiftieth and Sixty-fourth streets. En route they stopped for a lunch. After each of them had purchased an overcoat, Kenny was driven to his home at Franklin and Nicollet. Green and Faricy, with the latter still driving, then started for St. Paul via Franklin avenue to University and thence east on University to the place of the accident in St. Paul just west of the intersection of University avenue and Vandalia street. At all times the corporation's outgoing mail remained in the car. It was Green's intention immediately before the accident to deliver the mail to the postal station near University and Snelling.
Just prior to the accident at about 7 p.m., as they were approaching the Vandalia intersection, Faricy was driving the car at a speed of about 20 miles per hour directly behind a truck in the traffic lane to the right of the eastbound street car tracks. Faricy turned the car to the left to swing into the traffic lane occupied by the street car tracks, and almost immediately upon so turning the car struck the inclined apron of the southwest safety island located immediately to the west of the Vandalia intersection for the convenience and protection of pedestrians intending to board eastbound street cars. The front of the safety island facing the on-coming traffic from the west consisted of a concrete apron about 15 feet long which at its extreme westerly end was 10 inches high and which increased gradually to a height of 2 feet above the pavement at its easterly end. Adjoining the easterly end of the apron stood a concrete bumper block or pier which rested upon but was not anchored to the pavement. This block, in which certain traffic lights were embedded, was 4 feet high, about 3½ feet wide, and 2 feet thick and weighed approximately 4,200 pounds. A platform for pedestrians 10 inches high and 56 feet long extended easterly from the east side of the concrete block. The bumper block, which, as described, was located between the safety island apron and the pedestrian platform, extended vertically 3 feet 2 inches above the pedestrian platform and 2 feet above the high end of the apron. Although there is some conflict in the evidence, the apparent purpose of this arrangement was to protect from injury or damage not only pedestrians standing on the safety island, but also the occupants of automobiles colliding with the safety island, in that the concrete apron by its sloping design would slow down a colliding automobile before its onward rush was stopped by the 4,200-pound bumper block.
At the time of the accident, plaintiff Dennis Wayne Paul, who was then 11 years old, stood on the safety island's pedestrian platform near the bumper block in anticipation of boarding a street car. When the car driven by Faricy hit the concrete apron, it continued forward and upward onto the apron until it struck the bumper block, which by force of the impact tipped over onto the platform where Dennis stood. Dennis' left leg was crushed and pinned between the block and the platform. Faricy said he did not see the safety island prior to the collision and that he did not apply the brakes. When the car actually hit the bumper block, it had been, by its drag over the concrete apron, slowed down to a speed of 3 to 5 miles per hour. When the car stopped it was still on the concrete apron, but its front end from the front axle forward hung suspended over the safety-island platform.
Dennis suffered numerous abrasions, cuts, and bruises upon his body, and it was necessary to amputate his left leg at a point about five inches below the knee joint. Dennis's growth and the wear on the artificial limb he now wears will require its replacement every few years.
Pursuant to M.S.A. § 161.03, subd. 4, that portion of University avenue involved herein, inclusive of the area occupied by and surrounding the aforesaid safety island, was in 1934 designated a part of the state trunk highway system. In connection with the reconstruction and improvement of this section of University avenue as a trunk highway, the engineering department of the city of St. Paul prepared and proposed plans for the conversion thereof to a state highway, and these plans included the design for the building of the above safety island as well as for an identical safety island located to the east of the Vandalia intersection on the other side of University avenue. These plans were submitted to the state highway department, which officially adopted and incorporated them as a part of its general plans for the project. These general plans and specifications, before the work was commenced, were in turn submitted to and approved by the St. Paul city council as provided by § 161.03, subds. 3 and 4. The construction work — which was completed in 1936 — was performed by a private contractor under a contract with the state highway department. The city of St. Paul neither performed nor paid for any part of the construction work.
Subsequently, pursuant to § 160.41, the state of Minnesota, acting by and through its commissioner of highways, entered into a yearly maintenance agreement with the city of St. Paul whereby the latter, for a consideration of $500 per mile, agreed, with respect to portions of state trunk highways located within its corporate limits — inclusive of the section of University avenue here involved — to maintain such portions so as "to keep the same smooth and in good repair for the passage of traffic and free from all obstructions and impediments to traffic" and to "Maintain traffic control devices and signals * * *." The maintenance agreement...
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