Zubryski v. Minneapolis Street Railway Company, 36354

• Decision Date: 21 January 1955
• Docket Number: No. 36354,36354
• Citation: 243 Minn. 450,68 N.W.2d 489
• Parties: Margaret ZUBRYSKI, as Administratix of the Estate of Peter Zubryski, Respondent, v. MINNEAPOLIS STREET RAILWAY COMPANY et al., Appellants.
• Court: Minnesota Supreme Court

Page 489

68 N.W.2d 489

243 Minn. 450

Margaret ZUBRYSKI, as Administratix of the Estate of Peter Zubryski, Respondent, v. MINNEAPOLIS STREET RAILWAY COMPANY et al., Appellants.

No. 36354.

Supreme Court of Minnesota.

Jan. 21, 1955.

Syllabus by the Court

It was error for the court to permit counsel for plaintiff to cross-examine an expert witness from certain medical textbooks in the manner in which it was done in the instant case. Held, because of the closeness of the issues and in the interest of justice, that a new trial should be granted defendant.

Ray G. Moonan, Frank X. Cronan, Minneapolis, for appellants.

Meagher, Geer, Markham & Anderson, David W. Nord and O. C. Adamson, II, Minneapolis, for respondent.

FRANK T. GALLAGHER, Justice.

Appeal from an order denying defendants' motion for judgment notwithstanding the verdict or for a new trial.

On October 16, 1949, at about 11:53 p.m., a collision occurred between a car driven by plaintiff's intestate, Peter Zubryski, and a streetcar owned by defendant Minneapolis Street Railway Company and operated by its motorman, defendant John K. Donaldson. Zubryski was killed instantly. The accident occurred on Thirteenth avenue northeast, which runs generally east and west, between Marshall and Ramsey streets, both of which run generally north and south. Thirteenth avenue northeast is 43 feet wide from curb to curb at that point. There are two sets of streetcar tracks on Thirteenth avenue as it crosses Marshall street. These tracks are spaced five feet apart, and the outside tracks are each 14 feet from the curb. At a point 185 feet west of this intersection the most northerly or westbound set of tracks begins to curve slightly toward the southerly or eastbound tracks. Forty-eight feet from this point the south rail of the westbound tracks crosses the north rail of the eastbound tracks, and 26.6 feet west of this point the westbound tracks wye or completely merge with the eastbound track. Ramsey street, which is completely taken up with railway tracks, is 70 feet west of the wye and is 66 feet wide.

Defendant Donaldson testified that, traveling in a westerly direction as he approached the point where the westbound tracks begin to curve toward the eastbound tracks, he was going from eight to ten miles per hour. After he made the turn and as he approached the wye, he was going from two to four miles per hour. He first saw the Zubryski car when he was just going into the curve. He did not apply his brakes or try to stop at that point. He estimated the speed of the Zubryski car to be 55 to 60 miles per hour. While he did state that the Zubryski car was at all times on its own side of the street, he stated that as Zubryski approached Ramsey street he was traveling close to the curb but as he crossed the west line of Ramsey street he started to turn out toward the center of the street. He stated that as Zubryski crossed the east line of Ramsey street he began to swerve to the left and that immediately before the impact the Zubryski car turned to its right. The impact occurred at the point where the front wheels of the streetcar wye into the eastbound tracks or about 260 feet west of Marshall street. Contact of the two vehicles was with the left front part of the streetcar and the rear part of the left front fender of the automobile. The Zubryski car came to rest about 70 to 80 feet east of the point of impact, with its rear wheels over the south curb and the front wheels in the gutter. Donaldson testified that he had applied the brakes as the Zubryski car crossed the east line of Ramsey street and that the streetcar was completely stopped at the time of the impact.

John B. Stout, who was a passenger on the streetcar at the time of the accident, testified that the streetcar conductor had thrown on the brakes simultaneously with the impact; that the streetcar had not stopped before the impact; and that 'after he threw the brake on, maybe he went three or four feet.'

It is not clear just where the Zubryski car was when Donaldson first saw it. At one point during the trial Donaldson testified that the Zubryski car was 300 feet west of him when he first saw it. The next day of the trial he changed this distance to 560 feet after having paced off the distance at the scene of the accident the night before. On cross-examination, Donaldson admitted that certain street conditions in the general locality had been changed between the time of the accident and the night he paced off the distance, but he claimed that he still could determine the correct distance.

Donaldson also testified that there are no signal lights on a streetcar which warn oncoming cars that a streetcar is going to make a left-hand turn. In answer to the question: 'So far as you know, Mr. Donaldson, at any point near or adjacent to the single track was there any sign established on the street to advise motorists of the single track situation?' he replied: 'I can't recall whether or not there was a red flag overhead on the trolley wire.' He said, however, that this possibly could not be seen at night.

It further appears from the record that on the night of the accident Zubryski was on the way to the home of a relative where his wife was staying; that the street he was traveling was the most direct route; and that he was familiar with it. It appears also that at the time of the impact the overhang of the streetcar extended over the south track of the eastbound tracks 16 to 18 inches. This still left a clearance, according to the record, of about 12 1/2 feet between the streetcar and the south curb.

We have examined the record in the light most favorable to the prevailing party, but, even so, we find it difficult to see how a jury could have found negligence on the part of defendants under the facts and circumstances here. However, we are not a factfinding body, so we are basing our decision for a new trial on other matters which might improperly have influenced the jury under the record here.

Defendants have raised several meritorious assignments of error, but, because it is our opinion that a new trial should be granted, we consider it necessary to discuss only one pertinent assignment, which is that the trial court erred in permitting counsel for plaintiff to cross-examine Goodwin Joss from special textbooks in the manner he did.

It appears from the record that decedent had worked all day Sunday, October 16, 1949, from about 7 a.m. at a service station at Penn avenue north and Broadway in Minneapolis. At about 9:30 that evening his employer and a group of other men who had been pheasant hunting arrived at the service station, and shortly after one of the members of the hunting party produced a fifth of Bourbon whiskey. There was testimony that decedent had at least two unmeasured drinks from the bottle. Goodwin Joss, a professional chemist, was called by defendants as an expert witness. There had been previous testimony that a blood test had been made after the death of...