Teal v. St. Paul City Ry. Co.

Citation104 N.W. 945,96 Minn. 379
PartiesTEAL v. ST. PAUL CITY RY. CO.
Decision Date08 December 1905
CourtSupreme Court of Minnesota (US)

OPINION TEXT STARTS HERE

Appeal from District Court, Ramsey County; George L. Bunn, Judge.

Action by Mary J. Teal against the St. Paul City Railway Company. Verdict for plaintiff. From an order denying motion for judgment notwithstanding the verdict or for a new trial, defendant appeals. Affirmed.

Syllabus by the Court

Action to recover for personal injuries sustained by a collision between the defendant's street car and the sleigh of the plaintiff's husband, in which she was riding and which was drawn by a horse owned and driven by him. Held:

1. The evidence justified the trial court in submitting to the jury the question of the willful negligence of the defendant, and the court's charge to the jury as to such question, considered as a whole, was free from error.

2. The court did not err in its charge as to the alleged failure of the defendant to sound its gong.

3. The evidence does not show that the plaintiff was guilty of contributory negligence as a matter of law. Munn & Thygeson, for appellant.

H. A. Loughran, for respondent.

START, C. J.

On the afternoon of January 16, 1905, at about 2 o'clock, the plaintiff was riding with her husband upon his invitation in a sleigh drawn by a horse owned by him and which he was driving in an easterly direction along Minnehaha street in the city of St. Paul. While he was attempting to cross East Seventh street near the intersection of Minnehaha and Mendota streets the sleigh was struck by a car of the defendant going easterly on Seventh street, whereby the plaintiff was thrown from the sleigh and injured. This action was brought to recover damages for such injury on the ground that the defendant negligently ran the car over the crossing at a dangerous rate of speed without sounding the bell or gong, and, further, that the motoneer in charge of the car was guilty of willful negligence. The jury returned a verdict for the plaintiff in the sum of $575, and the defendant appealed from an order denying its motion for judgment notwithstanding the verdict or for a new trial. We consider only the assignments of error urged in the defendant's brief.

1. The first assignment of error urged is that the trial court erred in submitting to the jury the question of willful negligence, for the reason that there was no evidence to sustain a finding for the plaintiff on such issue. The contention of the defendant is that the motoneer did not discover that the persons in the sleigh were in peril until the sleigh was driven upon the tracks, when he did all in his power to avoid the collision. The evidence on this issue was in our opinion sufficient to make the question whether the motoneer, after he discovered the plaintiff in a position of danger, used ordinary care to prevent the collision one of fact; hence the evidence justified the submission of the issue to the jury. It is further claimed in this connection that the court erred in instructing the jury to the effect that the duty of the motoneer, after he discovered the plaintiff in a position of danger, or after he knew or ought to have known that she would be struck by the car if he did not stop the car, was to use ordinary care to avoid the accident-that is, to stop the car; and if he failed to do so he would be guilty of willful negligence. It may be conceded that, if this was all the trial court said to the jury upon the subject of so-called willful negligence, it would have been error. Fonda v. St. Paul City Railway Co., 71 Minn. 438, 74 N. W. 166,70 Am. St. Rep. 341;Alger, Smith & Co. v. Duluth-Superior Traction Co., 93 Minn. 314, 101 N....

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