Waldo v. St. Paul City Ry. Co.

• Decision Date: 29 April 1955
• Docket Number: 36460,Nos. 36459,s. 36459
• Parties: Evelyn WALDO, Appellant, v. ST. PAUL CITY RAILWAY COMPANY, Frank B. Whisler, W. H. Biscoe, individually, and d/b/a Biscoe Transfer Company, and Robert Biscoe, Respondents. Evelyn WALDO, Respondent, v. ST. PAUL CITY RAILWAY COMPANY and Frank B. Whisler, Respondents, W. H. Biscoe, individually and d/b/a Biscoe Transfer Company, and Robert Biscoe, Appellants.
• Court: Minnesota Supreme Court

Page 289

70 N.W.2d 289

244 Minn. 416

Evelyn WALDO, Appellant, v. ST. PAUL CITY RAILWAY COMPANY, Frank B. Whisler, W. H.

Biscoe, individually, and d/b/a Biscoe Transfer

Company, and Robert Biscoe, Respondents.

Evelyn WALDO, Respondent, v. ST. PAUL CITY RAILWAY COMPANY and Frank B. Whisler, Respondents,

W. H. Biscoe, individually and d/b/a Biscoe Transfer

Company, and Robert Biscoe, Appellants.

Nos. 36459, 36460.

Supreme Court of Minnesota.

April 29, 1955.

Rehearing Denied May 25, 1955.

Syllabus by the Court.

1. While a street railway company as a common carrier of passengers is not an insurer of their safety, it is required to take every reasonable precaution for their safety; and the rule is well settled in this state that street railway companies, as carriers of passengers for hire, are bound to exercise the highest degree of care and diligence consistent with the nature of their undertaking and are responsible for the slightest negligence.

2. The defendants Biscoe, operating the truck involved in the collision, are charged with the exercise of that reasonable care commensurate with the circumstances and the dangers involved applicable under the standard of ordinary care in negligence cases.

3. Where, as here, the testimony of the plaintiff, a party to the action, consists of a narrative of events which she observed, preceding an intersection collision, as to movements of a streetcar in which she was riding as a passenger and a truck approaching on another intersecting highway, such testimony may be contradicted by the testimony of other witnesses and she is not as a matter of law bound thereby.

4. Conflicts in evidence, however sharp, are to be resolved by the jury, and its verdict will not be set aside unless it is manifestly and palpably contrary to the evidence as a whole. The rule in Minnesota, in general, is to the effect that the testimony of a single witness, no matter what the issue or who the person, may legally suffice as evidence upon which the jury may found a verdict.

5. It is only when different minds can reasonably arrive at but one result that fact issues become questions of law justifying a court in substituting its judgment for that of a jury. Granting judgment notwithstanding the verdict in this case in favor of certain defendants was not justified by the evidence as a whole and hence constitutes reversible error.

6. Since the motion for judgment notwithstanding the verdict included in the alternative a motion for a new trial, which has neither been granted nor denied under the provisions of Rule 50.02(2) of the Rules of Civil Procedure, the reversal accordingly vacates the order as a whole, reinstating the verdict, and requires when the remittitur goes down that the trial court reconsider and rule on the motion for a new trial.

Clifford W. Gardner and Thomas F. Burns, St. Paul, for Evelyn Waldo.

Swensen & Miley, St. Paul, for appellant Biscoe.

Frank X. Cronan, John J. Roseen, Minneapolis, for St. Paul City Railway Co. and another.

NELSON, Justice.

This action involved a collision between a truck owned by defendant W. H. Biscoe, individually, and doing business as Biscoe Transfer Company, and defendant Robert Biscoe, operator of the truck, and a streetcar owned by defendant St. Paul City Railway Company and operated by its motorman, defendant Frank B. Whisler. The collision occurred in the intersection of Hudson Road and Maria avenue in the city of St. Paul on the forenoon of January 6, 1947. Plaintiff, Evelyn Waldo, was a regular passenger at the time of the accident and brought the action to recover for injuries alleged to have been received as a result of the collision. The jury returned a verdict for the plaintiff in the amount of $6,209 against all defendants.

The St. Paul City Railway Company and Frank B. Whisler moved for judgment notwithstanding the verdict or in the alternative for a new trial as did W. H. Biscoe, doing business as Biscoe Transfer Company, and Robert Biscoe. The trial court thereafter entered its order granting the motion of the St. Paul City Railway Company and Frank B. Whisler for judgment notwithstanding the verdict and its order denying the motion of W. H. Biscoe, doing business as Biscoe Transfer Company, and Robert Biscoe. The defendants Biscoe appeal from both orders and seek reinstatement of the verdict against the St. Paul City Railway Company and Frank B. Whisler, or a new trial. Plaintiff appeals from the order of the district court granting the motion of defendants St. Paul City Railway Company and Frank B. Whisler for judgment notwithstanding the verdict of the jury against said defendants and asks that said order for judgment notwithstanding the verdict be set aside and that this court enter its order authorizing and directing reinstatement of the verdict of the jury against said defendants.

The legal question involved is whether the evidence sustains the jury's verdict against the street railway company and its motorman and whether defendants Biscoe are entitled to judgment notwithstanding the verdict or in the alternative a new trial.

Viewing the testimony as we must on these appeals in the light most favorable to the plaintiff, we make the following recital of facts: 'The plaintiff boarded the streetcar involved in the collision on the morning of the accident at Earl and Hastings streets and took a seat in the last cross seat on the right side of the car. She intended to ride until time for transfer in going to her home at 1860 Clear street. The streetcar traveled northwest on Maria avenue to the intersection of Hudson Road, Wilson and Maria avenues. Hudson Road, an arterial highway or stop street, runs east and west intersected by Maria avenue running northwesterly and southeasterly and Wilson avenue running northeasterly and southwesterly. Stop signs appear at four opposite corners in this three-street intersection.

Plaintiff, testifying in her own behalf, said that the streetcar stopped for the stop sign before reaching the intersection and took on a passenger or two; that the weather was cold and the streets slippery and icy; that after the streetcar then moved ahead she saw the Biscoe truck to her right coming toward the intersection on Hudson Road, then about 100 feet east of Maria avenue; that it was coming down an incline traveling westerly at a speed of 30 miles per hour; that the streetcar was moving into the intersection when she first saw the truck; that she continued to watch the truck until within ten feet of the point of collision noting no change in its speed; and that she then closed her eyes because it was apparent that there would be a collision. She further said that the truck remained in its own lane and that the streetcar was two-thirds of the way through the intersection when she closed her eyes. She also said that the streetcar did not reduce its speed but picked up speed and was traveling from eight to ten miles per hour when the impact occurred.

Whisler, the operator of the one-man streetcar, did not appear at the trial because of ill health. His testimony came into the case by way of a deposition taken some two weeks or more before trial. His testimony was that he had worked for the street railway company for about 20 years and had been driving streetcars for 12 years and that he was familiar with the intersection in question and the condition of its streets at the time of the accident; that he stopped at the stop sign but did not take on any passengers; that he looked east and west for oncoming vehicles but saw none until he had moved forward about ten feet traveling at two to three miles per hour at which time he observed the Biscoe truck at 300 feet coming to his right from the east toward the intersection at an estimated speed of 30 miles per hour. He knew of the incline toward the east and of the slippery and icy conditions in the surrounding street area having previously traversed it that morning. The intersection which he had to cross was 96 to 100 feet wide and the streetcar 47 to 48 feet in length. It appears clear from his testimony that this one glance on his part to his right, at which time he saw the Biscoe truck approaching, was the only time he observed the truck. He did not look again. The streetcar was equipped with air brakes in good working order and these were available for use when and if necessary. His first version of the situation was that he thought that he had plenty of time to get across and then that he did have plenty of time to do so. No use was made of air brakes. During the interval he increased his speed from two to three miles per hour, going into the intersection, to eight or ten miles per hour, his speed when the accident occurred.

Robert Biscoe, testifying in behalf of Biscoes, said that he was traveling from 25 to 30 miles per hour as he approached from the east on Hudson Road; that the front end of the streetcar was just entering the intersection when he was 110 to 125 feet from it; that he applied his brakes and began to skid and slowed down to 15 miles per hour by pumping his brakes; that he kept close to the curb in his lane and sounded his horn; and that the collision occurred when the rear end of the streetcar was within ten feet of leaving the intersection.

Earl Levang, a streetcar passenger called as a witness by the street railway company, said that when the streetcar was two-thirds into the intersection he saw the truck 150 to 200 feet away; that he knew at once there would be a collision. When questioned on cross-examination as to what kind of a stop the streetcar made before starting into the intersection, Levang stated that the wheels of the streetcar may have just stopped and started again; 'He might have had the power on and released it and went;' that the streetcar stopped a second. He admitted that he had previously told a Mr. Narveson, investigating the accident for one of the parties, that he couldn't say for sure if the streetcar...