Wosika v. St. Paul City Railway Company
| Citation | 83 N.W. 386,80 Minn. 364 |
| Decision Date | 05 July 1900 |
| Docket Number | 12,070 - (162) |
| Parties | TILLIE WOSIKA v. ST. PAUL CITY RAILWAY COMPANY; JOSEPH SHINDELUS v. ST. PAUL CITY RAILWAY COMPANY |
| Court | Supreme Court of Minnesota (US) |
Two actions in the district court for Ramsey county to recover damages for personal injuries, the one by Tillie Wosika by her guardian ad litem to recover $1,550, the other by Joseph Shindelus by his guardian ad litem to recover $1,200. The cases were tried before Kelly, J., and a jury, which rendered verdicts in favor of plaintiff in each case. From an order in each case denying a motion for judgment notwithstanding the verdict or for a new trial, defendant appealed. Affirmed as to plaintiff Wosika. Reversed as to plaintiff Shindelus.
Street Railway -- Duty in City and in Suburbs.
The reciprocal relations of the public and a street-railway company vary according to circumstances and conditions. Distinction made as to their relative rights and duties in the populous and in the sparsely-settled parts of a city. Held, that the driver of a vehicle who drove upon a street-railway track in the suburban, thinly-settled district of a city, where the public use of the street was limited without looking for approaching cars, was guilty of negligence.
Contributory Negligence of Principal.
One who, under such conditions, is riding in a rear seat, and who has no direct control over the horses at the time, but who is a joint contributor to the hire of the team for the occasion is guilty of negligence if he does not look for approaching cars upon crossing a street-car track.
Contributory Negligence of Passenger.
Under the circumstances of this case, a mere passenger, who has no control over the team, was not guilty of negligence in failing to look out for cars when crossing the track.
Assignments of Error.
Certain assignments of error examined, and held to be not sustained.
Munn & Thygeson, for appellant.
S. P. Crosby, for respondents.
Defendant owns and operates an electric street-car line on West Seventh street and its extension between St. Paul and Fort Snelling. At a point about three miles from the business center of St. Paul, plaintiffs were riding, together with five other young men and two other young ladies, in a three-seated vehicle along West Seventh street, on the northerly side of the car track, in a westerly direction. The rig had been engaged for the day, and all of the young men contributed for its hire. The young women were merely passengers. The track was single from a point four blocks east of Otto avenue, and on past the place mentioned, to Fort Snelling. It was between nine and ten o'clock in the evening, and the night was dark. Having determined to go no further west than Otto avenue, the driver turned the horses to the right, near the street gutter, to get room, then to the left, and crossed the track at nearly right angles, going south. A west-bound car struck the rear wheel of the wagon, upset it, and caused the injuries complained of. Otto avenue enters West Seventh street from a northwesterly direction, and is opened up to, but not across, West Seventh. The latter street is level for several blocks east and west from Otto avenue, and a car could be seen for that distance. Defendant appeals from an order of the trial court denying its alternative motion for judgment or for a new trial.
1. We find the usual conflict of testimony as to the management of the car and conduct of the parties. The charge of negligence made against defendant is that it ran the car at a dangerous rate of speed without warning or signaling its approach. The evidence for plaintiffs in this respect is furnished by the occupants of the wagon. It is merely to the effect that they were driving along by the side of the track, the horses on an ordinary trot, the wagon or carriage making but little noise; that the car approached without their hearing a bell or gong, or the noise of the car, and that when they did see the car the horses were then on the track, and the car within a few feet, rapidly approaching, striking the rear wheel, and pushing the wagon out of the way; and that the car was not brought to a stop until it had proceeded from fifty to seventy feet further. Some of the witnesses stated that they saw no headlight, and no motorman in front. It is true that most of this testimony was of a negative character. The headlight might have been burning, the motorman at his post, and the occupants of the wagon might not have observed the fact in their excitement. But the distance traveled by the car after the collision, the force of the contact, and the contradictory statements between the plaintiffs' and defendant's witnesses as to the light and signals, made the question properly one for the jury On the whole record, there was evidence reasonably tending to support the finding of the jury.
2. Plaintiff Shindelus occupied the same position as the driver with reference to the control of the team. The hiring of the rig for the purposes of the day was the joint act of all the young men. If the driver was negligent in crossing the track under the circumstances, or if Shindelus himself was negligent in not looking or listening, then he cannot recover. The testimony of the driver was that he looked to see if a car was coming just as he turned to the right, towards the gutter, but that he did not look after that, and had no knowledge of the approach of the car until the horses were on the track, when he started up the horses. Although the headlight might have been out, and the gong not sounded, the body of the car was lighted; and, if he had looked, he must have seen the car at that distance before driving the horses upon the track. In thus attempting to cross the track without further looking, the driver was negligent. The testimony of plaintiff Shindelus was that some one spoke and said it was too late to go out further, and that they should turn around and go home; that the driver turned the horses to the right, and then to the left, to cross the track, in order...
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