Smith v. Minneapolis St. Ry. Co.
| Decision Date | 23 June 1905 |
| Citation | 95 Minn. 254,104 N.W. 16 |
| Parties | SMITH v. MINNEAPOLIS ST. RY. CO. |
| Court | Minnesota Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Hennepin County; David F. Simpson, Judge.
Action by Howard W. Smith against the Minneapolis Street Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.
Where an electric car collides with a vehicle, which while being driven along a public street parallel and in the same direction with an advancing street car, turns at a street crossing to go over the track in front of that car, the negligence of the street car company is to be determined in accordance with rules of law giving both the car and the vehicle the right to use the streets and intersections, and imposing on both the reciprocal duty of the exercise of due care to avoid harm.
The exercise of care on the part of the motoneer has special reference to the rate of speed at which the car was moving his control and exercise of control over it, and his opportunity for observing that the vehicle was about to cross, including the distance from the track at which the vehicle turned and the rapidity with which it was then traveling.
The test of the care to be exercised at a street car crossing is not necessarily the same as is required at a steam railway crossing.
If a driver of a vehicle approaching a street railway track to cross it at an intersection with another street looks and listens and sees and hears no car approaching for such a distance that he could probably make the crossing safely, he is not guilty of contributory negligence, as a matter of law, if, while attempting to cross the tracks, the car strikes and overturns his vehicle.
In this case held, the negligence of the defendant and the contributory negligence of the plaintiff were for the jury, and its verdict was justified by the evidence. Koon, Whelan & Bennett, for appellant.
J. Van Valkenburg and F. N. Hendrix, for respondent.
The plaintiff and respondent, together with a companion, were, in the daytime, driving a single horse to a phaeton with the top down, but not unbowed, in an easterly direction, parallel with defendant's and appellant's street car track, down Hennepin avenue, in the business district of Minneapolis. The plaintiff turned his horse and vehicle for the purpose of crossing the track on Hennepin avenue, near its intersection, at right angles, with Seventh street, to drive up that street. The vehicle was struck and overthrown by a car going in the same direction in which it was being driven. Plaintiff brought this action for consequent personal injuries. On the first trial the jury found for the plaintiff. The trial court granted a new trial, and refused to direct a judgment notwithstanding the verdict, without assigning reasons therefor. On appeal this court refused to presume that the order granting a new trial was based on the ground that the verdict was not sustained by the evidence, and sustained the order of the trial court, because of error, inter alia, in the admission of expert testimony. Smith v. Minneapolis Street Railway Co., 91 Minn. 239, 97 N. W. 881. On the second trial the jury returned a verdict for $1,800. The defendant moved for judgment notwithstanding the verdict, because the evidence failed to show negligence on the part of defendant, as alleged in the pleading, and did show contributory negligence on the part of the plaintiff. The motion was denied, and judgment entered for the plaintiff. From that judgment, this appeal was taken.
1. The charge of negligence set forth in the complaint, taken in connection with the charge of the court, to which no exception was taken, and as to which no error is assigned, was that immediately prior to the collision the defendant was operating a car in the city at a dangerous rate of speed, that it failed to control the car in accordance with its legal duty, and that thereby the plaintiff was injured. The only question here presented is the sufficiency of the evidence to support the verdict. Borgerson v. Cook Stone Co., 91 Minn. 91, 97 N. W. 734. The principles of law applicable are simple and familiar. Both the plaintiff and defendant had the right to use the street and its intersections; both owed the reciprocal duty of exercising that right with due reference to the other, in connection with the knowledge and the fact that the defendant's car followed a fixed path only. 2 Current Law, 1762. While the vehicle was being driven parallel with and near the track on which the car was running, the motoneer was not bound to anticipate that it would abruptly attempt to cross the tracks immediately in front of the car. If it did so undertake, the defendant company might not be guilty of negligence because of the failure of the motorman in charge to stop or slacken speed, or to avoid the collision. Fritz v. Street Ry. Co., 105 Mich. 50, 62 N. W. 1007;Chicago Union Traction Co. v. Browdy, 206 Ill. 615, 69 N. E. 570; Chicago Street Ry. Co. v. Ahler, 107 Ill. App. 397;O'Connell v. St. P. City Ry. Co., 64 Minn. 466, 67 N. W. 363. But the duty rested upon the street car company to have its cars in control at these points that the rights of others might be protected. People using the highways for lawful purposes had a right to rely in some measure upon the discharge of this duty (Sesselmann v. Metropolitan St. Ry. Co., 65 App. Div. 484,72 N. Y. Supp. 1010;Id., 76 App. Div. 336,78 N. Y. Supp. 482;Traction Co. v. Glynn, 59 N. J. Law, 432, 37 Atl. 66); and it would be actionable negligence to run a car at a rate of speed incompatible with the lawful and customary use of highways by others with reasonable safety (Railway Co. v. Block, 55 N. J. Law, 607, 27 Atl. 1067,22 L. R. A. 374;Searles v. Elizabeth, etc., Ry. Co., 70 N. J. Law, 388, 57 Atl. 134). In this case, therefore, as the motorman approached the intersection of the streets, he was bound to exercise due care, in view of the rights of both the car and the vehicle to use the streets and intersections, with proper reference to the rate of speed at which the car was moving, the control he had over it, and the opportunity afforded him for observing that the vehicle was about to cross, including the distance from the track at which it turned and the rate of speed at which it was then traveling.
The inquiry as to the testimony thus occasioned includes an examination of more evidence than merely that which pertains to the rate of speed at which the car was going. That is a circumstance to be considered, but the primary question is whether or not the defendant had and exercised reasonably prudent control over the car. The only eyewitness on behalf of plaintiff who testified as to the speed at which the car was running swore that it was going at the rate of 15 miles an hour when 160 or 170 feet west of the point of collision, and at the rate of 10 miles an hour when 80 feet from the plaintiff. He also testified that the speed of the car was checked and that the wheels were locked at a point 50 or 60 feet above the point of collision, so that they slid on the rails and fire flew from them. The significance of the latter part of this testimony is to be weighed in connection with the evidence of the motorman, defendant's own witness, that he could have stopped the car within 25 or 30 feet after he had first seen the vehicle turn to cross the tracks. This same witness of the plaintiff also said that when the plaintiff turned to cross the tracks the front end of the car was some 80 feet west of the point of the intersection of the street and avenue. According to his testimony and that of the plaintiff and also of plaintiff's companion, it would seem that the plaintiff drove some 25 feet after turning to cross the track before the car struck the vehicle. The plaintiff and his companion also testified that at some point, not very definitely fixed, but shortly before they reached the tracks, and at a point at which they could see some 75 feet, and before they commenced to cross over, they...
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