Swanson v. Minneapolis St. Ry. Co.

• Decision Date: 29 May 1958
• Docket Number: No. 37317,37317
• Parties: Alice M. SWANSON, Special Admrx. of Estate of Rose Rosenving, deceased, Respondent, v. MINNEAPOLIS STREET RAILWAY COMPANY, Appellant.
• Court: Minnesota Supreme Court

Page 514

90 N.W.2d 514

252 Minn. 484

Alice M. SWANSON, Special Admrx. of Estate of Rose

Rosenving, deceased, Respondent, v. MINNEAPOLIS STREET RAILWAY COMPANY, Appellant.

No. 37317.

Supreme Court of Minnesota.

May 29, 1958.

Syllabus by the Court

1. In an action by a streetcar passenger to recover damages based on defendant street railway company's negligence which brought about a violent lurch or jerk of the streetcar causing her to fall and injure her face, knee, and lower back, Held that the evidence considered in the light most favorable to the verdict sustained the jury's findings that the lurch was violent and due to defendant's negligence.

2. Held, on the record us, that the jury was justified in finding that plaintiff's injuries were permanent or at least would last for 10, 15, or 20 years.

3. Held that the verdict of $6,000 was not excessive nor was it the result of passion and prejudice.

David K. Wendel, Cary, Welsh & Roseen, Minneapolis, for appellant.

Swanson, Swanson & Swanson, Hilding Swanson, Brainerd, Richard Torrison, Brainerd, of counsel, for respondent.

DELL, Chief Justice.

This action was instituted by Rose Rosenving to recover damages for personal injuries which she sustained while a passenger on one of defendant's streetcars which it is claimed was negligently operated. The case was tried to a jury which returned a verdict for the plaintiff. Defendant's alternative motion for judgment notwithstanding the verdict or for a new trial was denied and this appeal followed. The present plaintiff, special administratrix of Mrs. Rosenving's estate, was substituted as a party herein after the latter's death and following the verdict, but all references to the plaintiff in this opinion are to Mrs. Rosenving.

Plaintiff testified that she had returned by bus to Minneapolis from McGregor, Minnesota, at 11:30 p.m., December 27, 1953; that she boarded one of defendant's eastbound streetcars at the corner of Hennepin Avenue and Seventh Street; that there were no seats vacant so she remained standing in the aisle alongside one of them and grasped the iron handle at the end of it; that midway between Sixth and Seventh Streets there was a violent lurch or jerk of the streetcar which caused her to lose her grip and to fall to the floor striking her head and back on the seat. She claimed that in falling she suffered a severe contusion of her face and an aggravation of a preexisting osteo-arthritic condition and that the latter injury was permanent in nature.

Numerous assignments of error are specified in appellant's brief but only three issues merit our consideration: (1) Whether the evidence was sufficient to sustain a finding of negligence on the part of defendant; (2) whether it was sufficient to sustain a finding that plaintiff's injuries were permanent; and (3) whether it was sufficient to sustain a verdict of $6,000.

1. We, of course, consider the evidence in the light most favorable to the verdict ¹ and will grant a motion for judgment notwithstanding the verdict only if the evidence is manifestly against it. ² Defendant contends that since plaintiff's version of the facts of the accident is uncorroborated; that since she made certain inconsistent statements, and two witnesses gave testimony which was in some respects contradictory to hers, her testimony had no probative value and a jury finding based thereon was merely a guess and cannot be sustained. We cannot agree.

Drawing conclusions from contradictory evidence, however sharp the conflict, and determining the credibility of witnesses are for the jury unless the facts are so clear cut that reasonable men could not possibly differ regarding their interpretation. ³ One such instance was Bakken v. Lewis,223 Minn. 329, 335, 26 N.W.2d 478, 481, where the uncorroborated testimony of one witness was 'so unsatisfactory and contradictory and so thoroughly discredited' that it would not have supported a verdict if one had been rendered. But that description does not characterize the instant case and a directed verdict here could not have been sustained as it was in the Bakken case.

The death of the motorman deprived the jury of the benefit of any testimony which he might have given relating to the alleged lurch or jerk which plaintiff claims caused her fall. From the record it is difficult to determine whether the inconsistencies in her testimony are merely verbal errors or the result of confusion because of her limited education and the persistent and aggressive cross-examination by defense counsel or whether they are actual misstatements of the facts. Nor was the testimony of defendant's witnesses so conclusive that it discredited plaintiff's account of what happened. The weight and credibility to be accorded conflicting evidence is not to be determined by the number of witnesses which one side or the other produces before the jury. ⁴ There being a genuine issue of fact, it was for the jury in its deliberations to resolve any contradictions and inconsistencies and in so doing to determine what weight and credibility to attach to the various witnesses' testimony. ⁵ There is sufficient evidence to support its finding and we are therefore compelled to accept the verdict ⁶ unless we are to hold as a matter of law that a violent lurch or jerk in the operation of a streetcar cannot constitute the basis for a claim of negligence. This we cannot do.

A street railway company is not an insurer of the safety of its passengers but must use every reasonable precaution for their safety. It must exercise the highest degree of care toward them consistent with its undertaking and is responsible for the slightest negligence. ⁷ No liability is thus incurred when a passenger, for no apparent reason, falls in a streetcar or where the fall is attributable solely to the ordinary jerks, jolts, and lurches of the vehicle when driven in the usual manner. ⁸ These are to be expected because they are normal incidents of operating such a vehicle and passengers are presumed to prepare for them. However, unexpected, severe, or violent lurches are not customary. Neither are passengers required to protect themselves against them nor may the street railway company insulate itself against liability to passengers who are injured thereby, solely on the theory that these are also part of the normal operation of the vehicles. ⁹ Questions regarding the severity of such lurches, jerks, and jolts, and whether they constitute actionable negligence will vary, of course, from case to case, and are generally for the trier of facts. This is true in the instant case and on the record before us we are of the opinion that the evidence supports the jury's finding that there was a violent lurch or jerk which was caused by defendant's negligence.

2. Defendant's contention that the evidence does not support a finding of permanent injury requires little comment. Each side summoned a medical witness. Defendant's witness testified that the injury was not permanent. Plaintiff's witness testified that it was permanent and that by permanent he meant that even if the aggravated osteo-arthritic condition 'burned itself out,' as sometimes...