Wright v. Sioux Falls Traction System

• Decision Date: 11 December 1911
• Citation: 133 N.W. 696,28 S.D. 379
• Parties: WRIGHT v. SIOUX FALLS TRACTION SYSTEM.
• Court: South Dakota Supreme Court

133 N.W. 696

28 S.D. 379

WRIGHT v. SIOUX FALLS TRACTION SYSTEM.

Supreme Court of South Dakota

December 11, 1911

Appeal from Circuit Court, Minnehaha County; Joseph W. Jones, Judge.

Action by S. H. Wright against the Sioux Falls Traction System. From an order granting defendant a new trial, plaintiff appeals. Order affirmed.

Sam H Wright, for appellant.

Boyce & Warren, for respondent.

SMITH P. J.

Appeal from an order of the circuit court of Minnehaha county setting aside a verdict and judgment for plaintiff, and granting a new trial, in an action for personal injuries.

The order granting the new trial is expressly limited to the ground "that the evidence was not sufficient to raise the inference of negligence on the part of the defendant or its agents or servants, and for that reason defendant's motion for a direction of a verdict should have been granted." The motion for a new trial was upon two grounds: "First. There was not sufficient evidence of any negligence on the part of defendant which contributed to plaintiff's injury or which was the proximate cause of the injury. Second. The evidence shows that the injury was the result of the plaintiff's attempt to board the moving car, the risk of which the plaintiff assumed, or of his own negligence, for which defendant is not liable." In its answer the defendant pleads plaintiff's contributory negligence and assumption of risk in attempting to board plaintiff's car while the same was in motion and before it had come to a stop, and without having signaled defendant to stop the car or having indicated to the defendant that he desired to take passage, and, but for plaintiff's negligence, said accident would not have happened, and plaintiff would have received no injury, and that, by attempting to board defendant's car while the same was in motion and at the point alleged in plaintiff's complaint he assumed the risk of any injury which might result under the conditions existing at that point. The order granting a new trial having been based upon one specific ground, namely "that the evidence was not sufficient to show negligence on the part of defendant or its agents or servants, and for that reason a motion for direction of the verdict should have been sustained," is equivalent to a denial of defendant's motion for a new trial in so far as the same was based upon the ground of contributory negligence or assumption of risk. To that extent the defendant must be presumed to have acquiesced in the decision of the court, and cannot urge upon this appeal that plaintiff was guilty of contributory negligence, or that plaintiff assumed the risk of injury under conditions existing at the time of the accident.

The only question for consideration is whether the evidence offered by plaintiff is sufficient to sustain an inference of negligence on the part of the defendant company. The defendant owned and operated an electric car line in the city of Sioux Falls, along Summit avenue, which crosses a viaduct over the Omaha Railroad. The street railway track runs north and south, and the Omaha road passing under the viaduct runs east and west. From the plat contained in the record it appears that the approach to the viaduct from the south is about 26 feet long, and the approach from the north is 28 feet, and that 54 feet across the top of the viaduct is perfectly level and covered with planking. At the south end of the approach to the viaduct the planking on the street is one foot and seven inches lower than the car rails. Over the level portion of the viaduct the rails are 5 inches above the plank for a distance of 54 feet, and at the north end of the approach the rails are 10 inches above the plank. The viaduct itself is considerably higher than the street, which rises rapidly toward the viaduct in both directions. There are railings on both the east and west ends, crossing the viaduct, and a walk on each side next the railings 3 or 4 feet wide, and a step from the walk of 2 or 3 inches, to the plank covering the viaduct.

The allegation in the complaint of negligence on the part of defendant is as follows: "That the said negligence of defendant, its agents, servants, and employés consisted in their failure to provide vehicles and other appliances necessary and safe for the purpose for which the same were then and there being used, also in not having properly and safely protected the approach to the point of taking passage upon and alighting from the cars of the defendant at said point, there being no raising of the surface of the track at said point so as to render the step upon and from said cars of a reasonable and safe height from the footing or standing of the embarking and alighting passengers, the rails at that point causing about six inches perpendicular rise without any reduction of such perpendicular condition, by filling in platforms or otherwise, as would bring the level of the embanking and alighting approach at said point to the conditions existing at all other places on the line of said defendant, *** thereby augmenting and adding to the danger incident to taking passage upon and retiring from said cars at that point, and misleading passengers and persons intending to take passage upon and retiring from said cars, and this plaintiff was then and there misled by such unusual conditions, to undertake embarkation upon the car of said defendant. That said defendant, its agents, servants, and employés, were then and there careless and negligent in their manner of operating said car, in that they failed to in a safe and businesslike manner to propel, stop, and start the car on which this plaintiff then and there sought to take passage, and through the sudden, negligent and careless jerking this plaintiff from the bridge or ground where he was seeking to take passage as aforesaid, and in diverse other careless acts and conduct in manipulating, managing, and running said car. Three. That the...