Vukos v. Duluth St. Ry. Co.
| Citation | 173 Minn. 237,217 N.W. 125 |
| Decision Date | 30 December 1927 |
| Docket Number | No. 25843.,25843. |
| Parties | VUKOS v. DULUTH ST. RY. CO. |
| Court | Supreme Court of Minnesota (US) |
Appeal from District Court, St. Louis County; E. J. Kenny, Judge.
Action by Peter Vukos against the Duluth Street Railway Company. From a judgment for defendant, plaintiff appeals. Reversed.
Thos. J. Doyle, of Duluth, for appellant.
G. A. E. Finlayson, of Duluth, for respondent.
Action to recover for injuries received in a collision between defendant's street car and an automobile in which plaintiff was riding as a passenger. The jury returned a verdict for defendant, and plaintiff appealed from the judgment entered thereon.
Whether plaintiff was guilty of contributory negligence was one of the questions submitted to the jury. Plaintiff contends that the court erred in submitting that question to the jury for there is no evidence tending to show contributory negligence on his part.
The accident happened shortly after five o'clock on the evening of January 20, 1924, in the city of Duluth. It was cold — eighteen degrees below zero. Plaintiff and two other passengers were in the back seat of the automobile; the owner, who was driving, and another passenger were in the front seat. Dixon street runs east and west and intersects Commonwealth avenue at right angles. A single street car track extends along Commonwealth avenue on the west side of the center line of that street. The automobile proceeded west on Dixon street and at the intersection turned south on Commonwealth avenue. The driver saw the street car approaching and says that he attempted to drive to the west side of the track, but that his left rear wheel skidded or slid along an icy rut at or near the west rail and he was unable to get it out in time to avoid the collision. The collision occurred about one hundred feet from the intersection.
Plaintiff testified that he did not see the street car nor know that it was approaching until he heard it whistle at the moment of the impact. There is no evidence contradicting this statement in any way; nor any evidence that the driver was not a competent and careful driver. There is no claim of excessive speed. The driver's statement that he was going about 12 miles an hour is apparently undisputed. Defendant claims that evidence that the windshield was covered with frost obstructing the vision, and that the driver cut the corner at the intersection, was sufficient to take the question of contributory negligence to the jury. Conceding that the windshield was covered with frost and that the driver cut the corner, both of which are disputed, there is no evidence that plaintiff knew either of these facts. But, if he did, it would not be...
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