Weissner v. St. Paul City Ry. Co.

• Citation: 47 Minn. 468,50 N.W. 606
• Parties: WEISSNER v ST. PAUL CITY RY. CO.
• Decision Date: 09 December 1891
• Court: Supreme Court of Minnesota (US)

47 Minn. 468

50 N.W. 606

WEISSNERvST. PAUL CITY RY. CO.

Supreme Court of Minnesota.

Dec. 9, 1891.

(Syllabus by the Court.)

1. Held, in this case, which is controlled by the rules of law laid down in Anderson v. Railway Co., 44 N. W. Rep. 518,42 Minn. 490, that the evidence warranted the evident conclusion of the jury that defendant's driver was guilty of negligence.

2. Held, further, that there was no testimony in the case tending to show that the parents of the infant injured by defendant's street-car contributed to the driver's negligence.

Appeal from district court, Ramsey county; EGAN, Judge.

Action by George J. Weissner, administrator, etc., against the St. Paul City Railway Company for the death of plaintiff's intestate. Judgment for plaintiff for $750. Defendant appeals. Affirmed.

Henry J. Horn, for appellant.

Willis & Nelson, (John W. Willis, of counsel,) for respondent.

COLLINS, J.

The plaintiff's right to recover in this action depends upon the sufficiency of the evidence to sustain the allegation in his complaint that defendant corporation was negligent in its operation of one of its cars drawn by a pair of horses, the driver thereof being the only employe with the car. The accident which resulted in the death of plaintiff's intestate, Maidie Blees by name, a girl aged 17 months, occurred on Wabasha street, St. Paul, at a point nearly opposite the house in which her parents resided, about midway between College avenue and Tenth street. The car was going south upon the westerly rails of a double track, down hill, the descent being about 4 1/2 feet to the block of 300 feet, and the horses were trotting at the rate of at least 5 miles an hour,-a rate of speed which would cause them to cover the block of 300 feet in less than two-thirds of a minute. There were several passengers on the car, but, so far as appeared on the trial, none of them witnessed the accident. One witness, Mr. Sherman, stood at the corner of Wabasha and Tenth streets, about 200 feet distant, looking directly at the approaching team, the car, and the child, as the latter ran from the sidewalk, and, according to his testimony, fell upon the westerly rail several feet in front, or south, of the horses. But his position and facilities for seeing, looking, as he did, directly towards the child, the animals, and the car, were not so good as those of other witnesses, who were nearly opposite the child when it fell, and but a few feet away. These witnesses were Mrs. Lawler and Miss Nilson, who occupied and were in the front room upstairs of the dwelling of the girl's parents, and Mrs. Sture, who kept and was in a small shop in the building next adjoining upon the south. Their testimony, was, in substance, that as they heard the car coming down the hill, but before they saw it, the child ran from the sidewalk towards the rail, (13 feet distant in a direct line,) was knocked down by the car or by a harness trace, fell in rear of the team, and just in front of the car, which struck it instantly. On this feature of the testimony, as to where and when the child fell, these witnesses were corroborated by the driver, and, as their opportunities for observation were much superior to those of a witness who was looking at the affair from the front and farther away, and as on this testimony a less favorable case was made for the plaintiff on the question of the driver's negligence, we shall assume that the version given by these witnesses of the unfortunate occurrence was correct, and that on this one point Mr. Sherman was mistaken. The street on which the car was running was not obstructed by carriages, at least one of the witnesses stated that he saw none about there. The little...