Wright v. Minneapolis St. Ry. Co.

• Decision Date: 07 June 1946
• Docket Number: No. 34120.,34120.
• Citation: 222 Minn. 105,23 N.W.2d 347
• Parties: WRIGHT v. MINNEAPOLIS ST. RY. CO.
• Court: Minnesota Supreme Court

23 N.W.2d 347

222 Minn. 105

WRIGHT v. MINNEAPOLIS ST. RY. CO.

No. 34120.

Supreme Court of Minnesota.

June 7, 1946.

Appeal from District Court, Hennepin County; Frank E. Reed, Judge.

Action by Hugh George Wright, a minor, by George H. Wright, his father and natural guardian, against the Minneapolis Street Railway Company to recover damages for personal injury. Verdict for defendant, and plaintiff appeals.

Reversed and new trial granted.

Erling Swenson, of Minneapolis, and John Edmund Burke, of St. Paul, for appellant.

Ralph T. Boardman and John F. Dulebohn, both of Minneapolis, for respondent.

PETERSON, Justice.

Plaintiff, a boy about five and one-half years old, brings this action by his father as his natural guardian to recover damages for personal injuries sustained as the result of defendant's alleged negligence. Defendant had a verdict. Plaintiff appeals.

There are numerous assignments of error challenging the regularity of the proceedings below and the correctness of the charge in defining the rights and liabilities of the parties. Because we think that there must be a reversal for the reason that the charge was erroneous, and because we think that the alleged irregularities are not likely to be repeated upon a new trial and that the errors in the charge might be, we shall limit consideration of the appeal to the errors in the charge, to the end that the trial court may be guided as to the correct rules for determining the rights of the parties upon a new trial.

The accident occurred in the intersection of Fourth avenue south and Eighteenth street in Minneapolis. Fourth avenue extends north and south and has two parallel sets of streetcar tracks in the middle, one for northbound and the other for southbound traffic. Eighteenth street extends east and west. There are no traffic-control signals at the intersection. There is a marked pedestrian crossing on the south side of Eighteenth street across Fourth avenue shown by parallel yellow lines painted on the pavement. These lines are prolongations of the sidewalk lines.

Plaintiff, at the time of the accident, was about 40 inches tall. He lived in an apartment at the southwest corner of the intersection. At about ten minutes past eight o'clock in the morning he left his home to go to school, went to the southwest corner of the intersection, where he stopped, and, after making observations to his left and to his right, started to run across the street within the marked crosswalk. When plaintiff started to cross the street, one of defendant's northbound streetcars was standing upon the crosswalk on the south side of the intersection discharging and taking on passengers. The testimony of an eyewitness and of the motorman, illustrated by a photograph and a map of the locus in quo, showed that the front part of the streetcar was upon the crosswalk and the fender projected about three feet over the north line thereof into the intersection. According to the testimony of the only eyewitness, plaintiff touched the side of the streetcar with his hand, went along the left side, and started to cross in front of it; and, when plaintiff was going around in front of the streetcar, it started suddenly without giving any warning and struck him, causing him to fall on the fender, which projected about three and one-half or four feet in front of the streetcar. He was carried on the fender for a distance of about 140 to 150 feet and then fell off on the east side with his head toward the curb and his feet toward the tracks. The streetcar passed over the toes on his left foot necessitating their amputation.

Plaintiff claimed that, when he was going around the front of the streetcar, the motorman started it suddenly without first making an observation to ascertain whether the tracks were clear and without sounding any warning that the car was to be started. There was testimony to substantiate plaintiff's version as to his crossing, the failure of the motorman to make any observation either ahead or to his left before starting the car, the sudden starting of the car when plaintiff was going around in front of it, and the lack of any warning that the car was to be started. Defendant sought to justify the motorman's conduct by a claim of right of way to which plaintiff was required to yield and by showing that the motorman under the circumstances could not and did not see plaintiff before starting the car. In support of its version, the motorman testified that prior to starting the car he had been collecting fares and looking to his right and that at the time he started he looked to his right, to his left, and ahead. He testified further that he was five feet six inches tall; that he remained seated while performing his duties; and that by looking out the left window of the car he could not see a person of plaintiff's height if such person was within ten feet of the side of the car; that he did not see plaintiff before he started the car; and that he did not know that plaintiff was crossing the street or that he had been struck by the car or that he had been carried on the fender until after plaintiff had fallen off the fender and the car had passed over plaintiff's foot. Another motorman testified that while seated a motorman could not see the front bar of the fender.

The portions of the charge challenged by plaintiff are as follows:

(1) "* * * Between intersections streetcars and motor vehicles have the right of way, which means that in this case, for instance, if the streetcar had entered the intersection and had crossed the southerly crosswalk of that intersection before this boy stepped from the curb into the street, then the streetcar would have had the right of way. But if the boy [plaintiff] had stepped from the curb onto the crosswalk with the intention of proceeding in an easterly direction on the southerly crosswalk, before the streetcar had entered the intersection, then the boy would have had the right of way."

(2) "* * * On the other hand, if the circumstances are such that in the exercise of ordinary care he does not see such pedestrian, why then his failure to give such warning would not constitute an act of negligence. * * * If this boy left the curb and the motorman couldn't see him, due to the height of the boy, in the exercise of ordinary care, that is, if the motorman had looked and couldn't see the boy, then his failure to see him would not constitute negligence."

(3) "* * * The motorman is supposed to do, under all the circumstances, just what a reasonably prudent motorman would do. * * *

"* * * So one of the first issues that you ladies and gentlemen will have to decide when you return to your jury room, is whether or not that motorman in operating that streetcar at that time and place exercised ordinary care, exercised such care as a reasonably prudent motorman would have exercised under the conditions and circumstances as they then existed. If he exercised that degree of care then the defendant is not liable."

(4) "* * * Accidents may happen when no one is to blame, they may be the result of an unavoidable accident, or they may result when the person who brings the action is to blame. Before you can return a verdict in this case against this defendant you must find by a fair preponderance of the evidence that the injuries which the boy sustained were caused solely and directly by the negligence of the motorman of that streetcar."

1. "Right of way" is "the privilege of the immediate use of highway." Minn.St.1941, § 169.01, subd. 45, Mason St. 1940 Supp. § 2720-151(44). Where, as here, there are no traffic-control signals, the driver of a vehicle is required to "yield the right of way, slowing down or stopping if need be to so yield, to a pedestrian crossing the roadway within any marked crosswalk or within any unmarked crosswalk." (Italics supplied.) Section 169.21, subd. 2 (§ 2720-203(a). Right-of-way rules apply to streetcars. LeVasseur v. Minneapolis St. Ry. Co., 221 Minn. 205, 21 N.W.2d 522. The object of giving a pedestrian the right of way and requiring vehicles to slow down or stop to accord him such right is to protect pedestrians, especially the aged and children, from being in effect trapped by moving traffic and hit by inconsiderate and impatient drivers who insist on proceeding, heedless of danger and injury to those on the highway who are unable to protect themselves under the circumstances. See, Goodman v. Brown, 164 Misc. 145, 298 N.Y.S. 574.

The right-of-way rule is simply a rule of precedence as to which of two users of intersecting highways shall have the immediate right of crossing first at an intersection where the users simultaneously approach the intersection on the intersecting streets so nearly at the same time and at such rates of speed that, if they proceed without regard to each other, a collision or interference between them is reasonably to be apprehended. The application of the rule is restricted to such situations. Casto v. Hansen, 123 Or. 20, 261 P. 428; 3 Berry, Automobiles, 7th Ed., § 3.13, p. 39. The privilege conferred by right of way is that of an immediate crossing by a moving pedestrian or vehicle without interruption by another, and not of a future crossing by a standing one after first starting and moving. A vehicle or pedestrian standing still on a highway can have no right of way over other vehicles or pedestrians, whatever their rights otherwise might be. Guillory v. United Gas Public Service Co., La.App., 148 So. 274 (moving automobile and stationary pedestrian); DeSena v. American Reduction Co., 88 Pa.Super. 199 (moving and standing automobiles); Blackwood v. Monongahela Valley Traction Co., 96 W.Va. 1, 122 S.E. 359 (streetcar standing at crossing starting suddenly held not to have right of way over motorist crossing intersection in front of it); 2 Blashfield, Cyc.Auto. Law & Practice, Perm.Ed., § 992, note 10, § 1272, note 5.

This is true for the obvious reason that a standing object,...