Sullivan v. Minneapolis St. Ry. Co.
| Citation | 161 Minn. 45,200 N.W. 922 |
| Decision Date | 21 November 1924 |
| Docket Number | No. 24052.,24052. |
| Parties | SULLIVAN et al. v. MINNEAPOLIS ST. RY. CO. |
| Court | Supreme Court of Minnesota (US) |
Appeal from District Court, Hennepin County; Frank M. Nye, Judge.
Action by Clarissa B. Sullivan and others against the Minneapolis Street Railway Company. Verdict for defendant, and from an order denying her motion for new trial named plaintiff appeals. Affirmed.
Mead & Bryngelson, Ernest Malmberg, and Beth Scott Bryngelson, all of Minneapolis, for appellant.
Ralph T. Boardman, of Minneapolis, for respondent.
Plaintiff was a standing passenger upon one of defendant's crowded street cars, which was traveling northerly on Nicollet avenue in Minneapolis. When the car came near the corner of Nicollet and Grant, where the car tracks turn to the right on Grant, the motorman made an emergency stop. Plaintiff claims that she was thrown to the floor of the car on account of such stop and injured, resulting in a serious condition. She claims that defendant was negligent in not so operating its car, under the circumstances, as to have it under such control as to avoid collision without such a sudden stop. The track, in turning on to Grant street, comes within 4 feet of the curb. On Nicollet avenue it is about 18 feet from the curb, and gradually crowds over until it makes the turn. It is the contention of defendant, supported by its evidence, that as the car approached the turn a truck stood next to the curb on Nicollet, facing the same direction as the street car, and about 20 feet from the corner. It had an inclosed winter top over the driver's seat. It had stakes on the side and the back, and there were ice cream cans and barrels on the truck. There were other automobiles and trucks along the curb. The motorman could see no one about the truck. When the front end of the street car came up, about even with the rear wheels of the truck, it was traveling between 4 and 6 miles per hour. At that instant the driver of the truck, without notice or warning started the truck. If both had continued, a collision would have been inevitable, because the rails gradually converged toward the curb. The motorman immediately reversed the car to avoid an accident. This was an emergency stop. He did not collide with the truck, but plaintiff claims to have been injured. The jury returned a verdict in favor of defendant. Plaintiff's motion for a new trial was denied, and she now appeals from the judgment.
Plaintiff claims that she was entitled to a directed verdict, and later entitled to a new trial, because, she says, defendant was guilty of negligence as a matter of law, and that the only question for the consideration of the jury was the amount of damages.
1. The morning was a misty one; there had been intermittent showers; the tracks were wet; the motorman, from his position in the cab, had a clear view. He was familiar with the construction of the track and the conditions of the day. It is claimed that he should have been on the lookout for just such a contingency as this, and that he should have had his car under such control that, should such an occasion arise, he might have checked it without doing injury to others. It is claimed that this case comes within the principle of Heiden v. Minneapolis Street Ry. Co., 154 Minn. 102, 191 N. W. 254, which holds that it is the duty of a motorman operating a street car, after dark, to have it under such control that, when the rays of the headlight enable him to discern a vehicle on the track, he can stop the car in time to avoid a collision. But here we have many automobiles parked by the curb. There was nothing to indicate that this particular truck was occupied by a driver. Neither was there any reason to expect it to move without notice or warning. At least, we cannot say as a matter of law that it was negligence for the motorman to make the emergency stop under the circumstances. It was his duty in operating the car along the street to have due regard for known conditions, and to take reasonable precautions to avoid accidents which such conditions render more probable. Should he have anticipated the danger that suddenly confronted him? Reasonable persons might differ on that question. If it was necessary to make the sudden stop in order to avoid a collision, it was his duty to make the stop in a reasonable manner.
The contention is made that the emergency stop only became imperative because of the previous negligence of the motorman in failing seasonably to consider and anticipate the probable movement of the truck. If he must assume that every truck or automobile, located so that in movement it would soon be upon the track, is to move without warning or notice, it will materially reduce the speed of traffic. There are a number of elements present which forbid us from saying that defendant was guilty of negligence as a matter of law. The question of negligence presented by the facts and circumstances is one of fact, and was properly submitted to the jury.
2. It is also urged that the court should have instructed the jury that defendant was guilty of negligence as a matter of law, because of a violation of a city ordinance fixing the carrying capacity of the street car. If it violated the ordinance, it would doubtless constitute negligence. McMahon v. Flynn, 154 Minn. 329, 191 N. W. 902. But there is a proviso in the ordinance that two children under six years of age may be counted as one adult. The record is not such as to justify the conclusion, as a matter of law, that the ordinance was violated. This question was properly left to the jury, as well as the question as to whether or not such violation of the ordinance caused or contributed to the injury. Plaintiff could not upon this record, ask for a more favorable instruction upon this branch of the question. Even if the ordinance was in fact violated by a number of passengers, it would be doubtful if the evidence would disclose it as a proximate cause of the injury. It is not, however, necessary for us to determine this inquiry.
3. Defendant, through its chief claim agent, proved over plaintiff's objection that no other claim was made upon defendant arising out of the accident. It is claimed that this was error. Ordinarily it would have been, because the mere fact that other persons were not injured or did not seek damages would not be material or relevant. But here the plaintiff testified that the car was crowded and many passengers standing; and that, because of the emergency stop, all the passengers who were standing "were just like one great mass of humanity just hurled right forward; they just went down headlong into the center of the aisle." "They (those holding straps) were torn right loose from the straps and went right down with the rest of us." "Every one fell on top of each other." "I remember when I was getting up that I was lying on top of a man, and there was a lady lying on top of me, and I had to wait until she got up before I could get up." She also testified that a man who was thrown at the same time became very angry, and she heard him repeat the number of the conductor. The defendant's conductor testified that no one was thrown to the floor. There is a sharp conflict in the testimony. In view of the claims of plaintiff, this testimony had some bearing upon the improbability of the accident happening as she claimed. That bearing may have been remote and of little weight, but with that we are not concerned. This testimony related to a collateral fact, and, in the discretion of the trial court, was admissible. It had a direct tendency to show that the statements of a witness on one side were more reasonable, and therefore more credible, than the statements of a witness on the other side. Such testimony is admissible, but obviously must be received with caution. Glassberg v. Olson, 89 Minn. 195, 94 N. W. 554; Philips v. Mo, 91 Minn. 311, 97 N. W. 969; McKenzie v. Banks, 94 Minn. 496, 103 N. W. 497; Virtue v. Creamery Package Co., 123 Minn. 17, 44, 142 N. W. 930, 1136, L. R. A. 1915B, 1179, 1195; Farmer v. Studebaker Corp., 126 Minn. 346, 148 N. W. 285; Van Cappellan v. C., St. P., M. & O. Ry. Co., 126 Minn. 251, 148 N. W. 104; Sonnesyn v. Hawbaker, 127 Minn. 15, 148 N. W. 476; State Elevator Co. v. G. N. Ry. Co., 133 Minn. 295, 158 N. W. 399.
4. At the time of the accident defendant had in force a rule that required every motorman to forthwith make a report on every emergency stop. Defendant put in evidence, over plaintiff's objection, such report made out by the motorman, Northcut, immediately after this accident, and turned in before he knew any one claimed to have been injured. It is as follows:
It is claimed that this evidence was inadmissible under the doctrine of Deatherage v. Petruschke, 106 Minn. 20, 118 N. W. 153; Gasser v. Wall, 111 Minn. 6, 126 N. W. 284; State v. Moses, 150 Minn. 470, 186 N. W. 303. The general rule as to an ordinary memorandum is that it is not admissible in evidence, and the witness cannot refer to it, unless it appears that without it he cannot speak from memory as to the facts, for it is only in such case that the witness needs the aid of the memorandum. Such memorandum is not admissible in evidence until it is made to appear to the satisfaction of the trial court that the witness cannot testify to the details shown by the memorandum independently of it. Meyers v. McAllister, 94 Minn. 510, 103 N. W. 564; Naas v. C., R. I. & P. Ry. Co., 96 Minn. 84, 104 N. W. 717. The case of Force v. Gottwald, 149 Minn. 268, 183 N. W. 356, fails to mention all the elements making such memorandums admissible, but that does not extend or...
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