Wilson v. Minneapolis St. Ry. Co.

• Decision Date: 05 December 1898
• Citation: 74 Minn. 436,77 N.W. 238
• Parties: WILSON v. MINNEAPOLIS ST. RY. CO.
• Court: Minnesota Supreme Court

74 Minn. 436

77 N.W. 238

WILSON

v.MINNEAPOLIS ST. RY. CO.

Supreme Court of Minnesota.

Dec. 5, 1898.

Appeal from district court, Hennepin county; William A. Lancaster, Judge.

Action by William A. Wilson against the Minneapolis Street-Railway Company. Verdict for plaintiff. From an order denying a new trial, defendant appeals. Reversed.

Syllabus by the Court

Action for the recovery of damages for injuries sustained by the plaintiff in a collision at a street crossing between his wagon and the defendant's electric cars. The trial court submitted the question of the defendant's negligence and of the contributory negligence of the plaintiff to the jury, and gave to them these instructions: ‘(1) Street cars are, in the main, governed by the same rules as other vehicles on the street, and their owners have only equal right with the traveling public to use the street. (2) A street-railway company must at least exercise as much care to avoid collision with other vehicles as the owners of the latter are required to exercise in order to avoid collisions with the cars. (3) When a driver of a vehicle approaching a street-railway track to cross it sees a car approaching at such a distance that he can apparently make the crossing safely, he has a right to attempt it; and it is not negligence per se in him to attempt it without looking a second time at the car, or for the approach of the car.’ Held, that each of the instructions was misleading and prejudicial. Koon, Whelan & Bennett, for appellant.

Frank D. Larrabee, for respondent.

START, C. J.

The plaintiff, while driving a four-horse team attached to a lumber wagon across a public street in the city of Minneapolis upon which the railway tracks of the defendant were located, was injured in a collision between its electric cars and the wagon. This action was brought to recover for his injuries so sustained. The verdict was for the plaintiff in the sum of $3,083, and the defendant appealed from an order denying its motion for a new trial. The trial court submitted to the jury the question of the defendant's negligence; also the question of contributory negligence on the part of the plaintiff; and gave to the jury, with other instructions, the following: ‘(1) Street cars are, in the main, governed by the same rules as other vehicles on the street, and their owners have only equal right with the traveling public to use the street. (2) A street-railway company must at least exercise as much care to avoid collision with other vehicles as the owners of the latter are required to exercise in order to avoid collisions with the cars. (3) When a driver of a vehicle approaching a street-railway track to cross it sees a car approaching at such a distance that he can apparently make the crossing safely, he has a right to attempt it; and it is not negligence per se in him to attempt it without looking a second time at the car, or for the approach of the car.’

1. The first instruction was given to the jury as an absolute rule of law as to the relative rights of the owners of street cars and those of other vehicles in the public streets. The instruction was incomplete, for it omitted the necessary modifications of the general rule, growing out of the difference in the nature of the two classes of vehicles, such as the construction, motive power, mode of operation, and speed of each. The instruction ignored all of these matters. It is true,...