Rappaport v. Stockdale

• Court: Minnesota Supreme Court
• Writing for the Court: HOLT
• Citation: Rappaport v. Stockdale, 160 Minn. 78, 199 N.W. 513 (Minn. 1924)
• Decision Date: 27 June 1924
• Docket Number: No. 23830.,23830.
• Parties: RAPPAPORT v. STOCKDALE.

160 Minn. 78

199 N.W. 513

RAPPAPORT

v.STOCKDALE.

No. 23830.

Supreme Court of Minnesota.

June 27, 1924.

Appeal from District Court, Hennepin County; E. A. Montgomery, Judge.

Action by Edward Rappaport against Arthur D. Stockdale and another. From a judgment for plaintiff, the named defendant appeals. Affirmed.

Syllabus by the Court

The evidence justified the jury finding the driver of appellant's auto van, in which plaintiff rode, negligent, and that such negligence concurred with that of the motoneer of the other defendant to cause a collision and injure plaintiff.

Plaintiff in riding standing on the floor of an inclosed van cannot be held negligent as a matter of law, and it was for the jury to determine whether his failure to jump from the van, when a collision with the street car appeared imminent, was contributory negligence.

Plaintiff, who had engaged the van to move his goods, which he assisted the driver in loading, was not a trespasser when riding in the van to the place where the goods were to be unloaded, his purpose being to see that the goods were safely carried and unloaded where he desired. And the court was correct in not treating him in the charge as a trespasser.

According to the weight of authority in this country, the driver of the van, after he knew plaintiff was riding, owed him the duty of refraining from active negligence by which the danger of riding on the van was increased or a new danger created.

A judgment will not be reversed on account of a harmless error.

The verdict, though large, does not appear to have been the result of passion or prejudice, and cannot be disturbed by this court. L. R. Allison, of Minneapolis, for appellant.

Geo. B. Leonard and R. T. Boardman, both of Minneapolis, for respondent.

HOLT, J.

Plaintiff, a dealer in second-hand automobile parts, telephoned appellant, engaged in the business of transporting goods within the city of Minneapolis, to move about 1,500 pounds of dismantled automobile engines and parts from down town to his place of business at 312 Plymouth avenue. Appellant sent an automobile van with driver to the place desired, and plaintiff and his servant, assisted by the driver, loaded the parts to be moved. Plaintiff then got into the van, as he says, to see that nothing was lost on the way. As the van, driven north on Third street, approached Plymouth avenue, a street car on the latter street was rapidly nearing Third street from the west. The time was in December, 1921, and travel had cut icy ruts in the streets. The stret car, on a slight down grade, was running, as plaintiff claims, at an excessive speed, and the driver of the van is alleged to have negligently driven in front of the on-coming car. The street car struck the van, throwing plaintiff out and injuring him. In this action for damages a verdict was rendered against both the street car company and appellant, the owner of the van. The latter alone appeals from the judgment.

[1] One assignment of error raises the proposition that the evidence does not sustain the verdict finding appellant's negligence to have concurred with that of the street car operator in causing plaintiff's injuries. The negligence alleged against appellant was that his driver, knowing of the street car's approach at a high and dangerous speed, nevertheless drove in front of it. The testimony is quite convincing that the street car was operated at a high and dangerous speed, considering the slippery condition of the rails and the ruts in the streets. The driver of the van saw the street car and could notice its speed. He also was aware of the ruts which necessarily interfered with the operation of the van, and should have appreciated the danger of attempting to cross the car tracks, even though he had the right of way. Plaintiff also testified that he called out to the driver to look out as the street car was nearing them. It was for the jury to say whether, under all the circumstances, an ordinarily prudent driver should not have yielded the right of way to the street car.

[2] Appellant also contends that in riding on the floor of the van plaintiff's contributory negligence appears as a matter of law. The van was inclosed and covered, except that on each side towards the front was a narrow opening with removable stakes to facilitate loading and unloading. The rear was open, and had the usual adjustable tail board set on a slight upward incline. The load did not cover the whole floor of the van. To ride standing in such a vehicle cannot be said to be so inherently dangerous that a jury could not find otherwise. Nor did plaintiff's guilt of contributory negligence conclusively appear from his failure to jump from the van when he realized that a collision was impending. The street was icy and rutty, the van was traveling eight or ten miles an hour, in his estimation, and had he jumped be might have lit in the path of the on-coming street car. The jury could well find that most men, under the conditions confronting plaintiff, would have remained in the van.

[3] In riding was plaintiff a trespasser? We think not. He had engaged appellant to move...