Peaslee v. Railway Transfer Company of Minneapolis
| Decision Date | 24 January 1913 |
| Docket Number | 17,820 - (166) |
| Citation | 139 N.W. 613,120 Minn. 347 |
| Parties | C. A. PEASLEE v. RAILWAY TRANSFER COMPANY OF MINNEAPOLIS |
| Court | Minnesota Supreme Court |
Action in the district court for Hennepin county to recover $5,000 for personal injury. The allegation of the complaint in respect to defendant's negligence is quoted in the seventh paragraph of the opinion. The answer alleged that if the accident occurred it was not due to any negligence whatsoever on the part of defendant or any of its employees but was due to plaintiff's failure to exercise ordinary care for his own safety. The case was tried before Waite, J who at the close of the testimony denied defendant's motion for an instructed verdict, and a jury which returned a verdict for $4,158. From an order denying defendant's motion for judgment notwithstanding the verdict or for a new trial, it appealed. Affirmed.
Questions for jury.
In this, a personal injury action, the evidence on the issues of defendant's negligence and plaintiff's contributory negligence was such that the court was not warranted in withdrawing either from the jury or directing a verdict for defendant.
Charge to jury.
It was not error for the court, in view of defendant's contentions at the trial, to instruct the jury that, as a matter of law, plaintiff was not negligent merely by reason of deviating from the usual course in walking upon a public street.
Verdict not excessive.
Verdict of $4,158 held not excessive for a broken leg near the hip where a permanent shortening of one inch and a quarter, deformity of the bone, and wasting of the muscles of the leg resulted. Besides it appeared that in wages, hospital, and medical attendance plaintiff had lost or paid $750, and that he had suffered severe pains which he was not free from at the trial, more than a year after the injury.
W. H. Bremner, F. M. Miner and George W. Seevers, for appellant.
Larrabee & Davies, for respondent.
In Minneapolis, on the west side of the river, Sixth avenue south is the main thoroughfare to the milling district. Crossing this avenue at right angles and running in a southeasterly and northwesterly direction parallel with the river is Second street. Adjoining this street on the north are four large flour mills with loading platforms extending up to, and in some places encroaching on, Second street. Of these mills the Anchor mill comes up to the easterly line of Sixth avenue south, thence easterly along Second street are located Washburn C, B, and A mills.
The whole of Second street, with the exception of a strip 15 or 20 feet on the southerly side, is occupied by railway tracks. From one of these tracks, designated in the record as No. 2, being the south-bound main, located just north of the center of Second street, diverge several spurs running to the loading platforms of these mills. Of these spurs one, called track 6, diverges from the main track about 100 feet west of the west line of Sixth avenue south, runs northeasterly along the loading platform in front of the Anchor mill, at the end of which it stops; the next spur, called track 5, diverges near the center of Sixth avenue south, parallels track 6, extending about 40 feet further east, and ends at the west end of the loading platform of Washburn C mill; track 4 is a spur diverging from No. 2 about 30 feet east of the east line of Sixth avenue south, paralleling track 5 and running in front of the loading platforms of the Washburn mills mentioned.
A large number of men are employed at these mills day and night. At midnight some shifts change, and also some men go to Washington avenue, a block farther south, for lunch. The usual course taken by the men at the Washburn mills in going from the mills to Washington avenue is to walk westerly on the loading platform of those mills until the southwest corner thereof is reached, where steps lead down to the ground between spur tracks designated as tracks 4 and 5, thence traveling between these till they run into the main track No. 2, thence westerly along or upon this track to Sixth avenue south, thence southerly along said avenue.
Plaintiff was employed in one of the Washburn mills. About midnight on February 28, 1911, he left the mill, walking westerly on the loading platform and down the steps at the southwest corner thereof, then continued between the tracks 4 and 5 mentioned until, as he claims, he found that, where track 4 joined or terminated into main track No. 2, cars obstructed his progress west, as well as cars upon track 5. He then crossed over between two cars on track 5 to track 6 and proceeded southwesterly on the latter track, when suddenly a car bore down on him from the west. Concluding that the best way to save himself was to jump on the loading platform of the Anchor mill, he made the attempt, but did not succeed in getting clear onto the platform. His body below the hips was caught between the car and the edge of the platform, and his leg near the hip broken and severely injured.
The jury returned a verdict for $4,158. Defendant appeals from the order denying its motion for judgment non obstante, as well as its motion for a new trial.
The contentions of defendant are: (a) Defendant's negligence was not established; (b) plaintiff's contributory negligence conclusively appears; (c) the court erred in its charge; and (d) the damages are excessive.
Plaintiff alleged that defendant negligently and "without the giving of signal by bell, whistle, or otherwise, and without having any lights upon its cars or any employee to clear its tracks ahead of its cars, kicked, ran, and propelled one of its cars" against plaintiff, injuring him. Plaintiff undertook to prove that the uniform custom and practice of defendant, when running in cars on the spurs to the loading platforms of these mills during nighttime, was to have a man with a lighted lantern either walking ahead of the car as it was pushed in, or else stationed on top of the car at the front end thereof. There was evidence to establish such custom, and failure to observe it with regard to the car which injured plaintiff. Even if no...
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