Terien v. St. Paul City Railway Company
| Decision Date | 21 December 1897 |
| Docket Number | 10,840--(190) |
| Citation | 73 N.W. 412,70 Minn. 532 |
| Parties | JOSEPH TERIEN v. ST. PAUL CITY RAILWAY COMPANY |
| Court | Minnesota Supreme Court |
Action in the district court for Ramsey county to recover $ 6,500 for personal injuries suffered by plaintiff. From an order Brill, J., denying defendant's motion for judgment notwithstanding a verdict of $ 1,000 for plaintiff or for a new trial, defendant appealed. Reversed.
Munn & Thygeson, for appellant.
Edmund S. Durment, for respondent.
Plaintiff a pedestrian, while crossing the street, was struck by defendant's street-railway electric car, and injured. This action is brought to recover damages for the alleged negligence of defendant resulting in such injury. On the trial, plaintiff had a verdict, and from an order denying a new trial defendant appeals.
In our opinion, the evidence will sustain a finding that defendant was guilty of negligence which caused or contributed to the injury, and the only other question that we deem it necessary to consider is whether or not the evidence of plaintiff's contributory negligence in failing to observe the approaching car is so conclusive that the verdict cannot stand. The injury occurred at the crossing of Fillmore avenue and Wabasha street, in a thickly populated portion of the city of St. Paul. Wabasha street extends nearly north and south crosses the Mississippi river on a bridge, and descends on a grade of 3.85 feet in 100 feet from the south end of the bridge to Fillmore avenue. The distance from the south end of the bridge to the south side of Fillmore avenue is 275 feet. The avenue crosses the street at nearly right angles. A double-track street railway is laid on Wabasha street. This street is 80 feet wide. The sidewalks on each side of it are each 15 feet wide, leaving the roadway 50 feet in width from curb to curb. The two tracks of the street railway occupy 14 feet in width in the middle of this roadway. Fillmore avenue is 60 feet in width.
At the time in question plaintiff and his two companions had come from a saloon a block further south on Wabasha street. They stopped at another saloon on the southeast corner of Wabasha street and Fillmore avenue. His two companions entered the same and he waited for them out on the street until they returned, and then they all started across Wabasha street on the south line of Fillmore avenue, intending to go to another saloon on the opposite side of Wabasha street on the southwest corner. Plaintiff's two companions crossed the tracks, but plaintiff, who was close behind them, was on the west track, near the west rail of the same, when he was struck by the car going south. Plaintiff testified that just before he started to cross the street he stood on the middle of the sidewalk on Wabasha street, in front of the saloon on the southeast corner, and looked both north and south on Wabasha street for an approaching car, but could see none; that he immediately proceeded to cross the street and did not look again, and never saw the approaching car until after it had struck him. This was about 8:30 p. m., on September 3. The car carried a headlight and was well lighted inside, so that it might be easily seen from the light in its windows. In looking in the direction of the approaching car from where plaintiff stood in front of the saloon, his vision might have been obstructed by one, two or three telephone or telegraph posts and by a lamp post, all of which stood in or near the sidewalk, just inside the curb; but there was nothing else to obstruct his vision except the superstructure of the bridge, the nearest end of which was 275 feet away.
There is a slight bend in the street at the bridge, so that, until the car emerged out of such superstructure and came off the end of the bridge, it might not be readily seen by a person at any point in the street crossing on which plaintiff was injured. A farmer's wagon came off the end of the bridge just ahead of the car, and immediately turned off onto Water street, which crosses Wabasha street at the end of the bridge about 200 feet from where plaintiff was injured.
It is but little excuse for plaintiff that he looked from the point at which he stood in front of the saloon. The street was well lighted with electric lights. He could see the telephone or telegraph posts and the lamp post; did see them, and knew that they obstructed his vision. After he started to cross the street and had reached the curb, there was nothing whatever to obstruct his vision unless possibly the farmer's wagon, if that was then coming off the end of the bridge. He knew that the proper place to look was, not where his vision was obstructed, but where it was not. There was nothing for him to dodge or keep out of the way of or look out for, while crossing the street, except this car, and he was not looking out for it or anything else.
He testified that he paid no attention whatever to the car, and it sufficiently appears that he paid no attention to anything else. Neither of his companions ever looked for the car at any time until they were on the track in front of it, when the attention of one of them was attracted by the light shining on his face from the headlight of the car about 30 feet away. He instantly shouted to plaintiff and his other companion, "Hurry up; here comes the car!" But plaintiff never heard the warning, never noticed the light, and was utterly unconscious of the approach of danger until he was struck by the car. Plaintiff testified that he saw no men on the street, while he was crossing the same,...
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