Phelps v. City of Mankato

• Decision Date: 10 January 1877
• Citation: 23 Minn. 276
• Parties: GEORGE D. PHELPS <I>vs.</I> CITY OF MANKATO.
• Court: Minnesota Supreme Court

23 Minn. 276

GEORGE D. PHELPS vs. CITY OF MANKATO.

Supreme Court of Minnesota.

January 10, 1877.

Plaintiff and his wife were driving, in the afternoon, in Mankato. Turning from State street into Byron street, their buggy struck a post at the intersection of the two streets, the plaintiff was thrown out, and his leg was broken. For the injuries thus received he brought this action. At the trial in the district court for Blue Earth county, before Dickinson, J., it appeared that State street and Byron street were both residence streets, the former seventy-four and the latter sixty-six feet in width. On Byron street the roadway was graded to a width of forty feet — twenty feet on each side of the centre line of the street — the remainder, or thirteen feet on each side of the street, being set apart for sidewalk and trees. Between the graded part of the street and the portion so set apart for trees and sidewalk there was a gutter, which, however, ended about eight feet from the corner, the street from that point to the corner being smooth and level. On each street there was a row of trees outside the sidewalk. On State street the last tree was ten or fifteen feet from the post, and on Byron street from eight to ten feet. The post was in line with the trees on State street, and just inside the line of the trees on Byron street. The usually travelled track of vehicles turning the corner was close to the post — in the language of one of plaintiff's witnesses, "every one seems to want to go nearer to the post than the others." The post was about six by eight inches, and eighteen inches high. It was of pine, unpainted, and weather-beaten; had been standing about three years, and had often before been struck by passing vehicles. Its situation is shown in the diagram on page 278.

Various exceptions to the admission of evidence were taken at the trial, the nature of which appears in the opinion. The defendant requested the court to instruct the jury that, "from the facts shown in relation to which there is no conflict of evidence, it appears that the plaintiff was guilty of such negligence as to preclude a recovery," which was refused, and an exception taken. The jury found a verdict for plaintiff for $1,000; a new trial was refused and defendant appealed.

Thomas Bohan and Brown & Wiswell, for appellant.

Waite & Freeman and M. J. Severance, for respondent.

GILFILLAN, C. J.

There was no error in admitting evidence under the complaint. After stating the duty of the defendant to keep...