Teal v. St. Paul City Railway Co.

• Citation: 96 Minn. 379
• Decision Date: 08 December 1905
• Docket Number: Nos. 14,477-(115).,s. 14,477-(115).
• Parties: MARY J. TEAL v. ST. PAUL CITY RAILWAY COMPANY.<SMALL><SUP>1</SUP></SMALL>
• Court: Supreme Court of Minnesota (US)

Page 379

96 Minn. 379

MARY J. TEAL v. ST. PAUL CITY RAILWAY COMPANY.¹

Nos. 14,477-(115).

Supreme Court of Minnesota.

December 8, 1905.

Action in the district court for Ramsey county to recover $5,000 for personal injuries. The case was tried before Bunn, J., and a jury, which rendered a verdict in favor of plaintiff for $575. From an order denying a motion for judgment notwithstanding the verdict or for a new trial, defendant appealed. Affirmed.

Munn & Thygeson, for appellant.

H. A. Loughran and John D. O'Brien, for respondent.

START, C. J.

On the afternoon of January 16, 1905, at about two o'clock, the plaintiff was riding with her husband upon his invitation in a sleigh drawn by a horse owned by him, 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 wilful 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 wilful 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 wilful negligence. It may be conceded that, if this was all the trial court said to the jury upon the subject of so-called wilful negligence, it would have been error. Fonda v. St. Paul City Ry. Co., 71 Minn. 438, 74 N. W. 166; Alger, Smith & Co. v. Duluth-Superior Traction Co., 93 Minn. 314, 101 N. W. 298. But the part of the charge excepted to was not all that was said upon the subject. The distinction between ordinary negligence, which is not actionable if the negligence of the injured party directly contributes to the result, and wilful negligence, whereby liability is incurred irrespective of the contributory negligence of the injured party, was clearly...