Peterson v. Minneapolis Street Railway Co.

Action to recover for personal injuries alleged to have been caused by the negligence of defendant. Plaintiff had a verdict in the court below, which was set aside on motion, and judgment ordered for defendant notwithstanding the same, on the ground that plaintiff was guilty of contributory negligence. Plaintiff appealed.

1. The order appealed from is based upon an alternative motion for judgment notwithstanding the verdict, or a new trial, and the point is made by respondent that it is not appealable. Such an order was held appealable in St. Anthony Falls Bank v. Graham, 67 Minn. 318, 69 N. W. 1077, an(l we adhere to that decision. An order based on a motion for judgment which is not blended with the motion -for a new trial, in case judgment is not granted,' is not appealable. Oelschlegel v. Chicago G. W. Ry. Co., 71 Minn. 50, 73 N. W. 631; Sanderson v. Northern Pac. Ry. Co., 88 Minn. 162, 92 N. W. 542. But When the order is based upon the blended motion it is appealable.

2. The facts in the case are as follows: Plaintiff was injured by being struck by a street car operated by defendant. The accident occurred at the intersection of Riverside avenue, Fifth street, and 'Twentieth avenue south, in Minneapolis. There is a double track on Riverside avenue extending from the center of Minneapolis to Minne-haha. At the time in question, and as plaintiff was about to cross the track on that avenue, a car was approaching from Minneapolis, going in the direction of Minnehaha, and one was coming from the other direction, going into the city. There is a grade on the avenue at this point, and the car coming from the city was going up, and the one going into the city down, the same. The motorman of the car which struck plaintiff testified that his car was “coasting” down the grade from a block south to the point where the accident occurred. By “coasting” he meant that the current of electricity was turned off, and no power applied to the car other than the force of gravity on the down grade. Plaintiff came from Twentieth avenue, a street running across Riverside avenue at an angle of about forty-five degrees, and as she came to the latter turned to the right, passed down the street some fifty feet, then turned to cross the street car track in a slightly diagonal course. As she turned down Riverside avenue she was facing the car going to Minnehaha, and the car which struck her, coming from the opposite direction, was behind her. As stated, the car going to Minnehaha was on an up grade, and the evidence tends to show that a boy was riding beside it on a bicycle, apparently racing with it, and that the motorman was sounding his gong, presumably as a warning to the boy, which undoubtedly attracted the attention of plaintiff, for she did not look behind her, or to the left, or notice the car approaching from the opposite direction. She stepped upon the track just about as the car going to Minnehaha was passing, and was immediately struck by the one approaching from the opposite direction. Piad she turned her head to the left and looked, she would undoubtedly have noticed the car, and could have stepped aside and avoided the accident. Her injuries were, somewhat severe, and the jury awarded her a verdict of $2,000.

The important question to be determined in this court is whether the trial court was right in its conclusion that the evidence is conclusive of plaintiff’s contributory negligence. We have but little doubt of the sufficiency of the evidence to take the case to the jury on the issue of defendant’s negligence, and, unless the evidence is conclusive of plaintiff’s contributory negligence, the verdict should stand.

It is claimed by plaintiff that the motorman permitted his car to run at an excessive rate of speed; that he failed to have the car under proper control; and that he did not sound his gong or give other warning of its approach, by reason of which the accident and injury to plaintiff occurred; that if the car had been under reasonable control, as it might and should have been at this particular place, or due warning of its approach given, no accident would have happened. The car which injured plaintiff was on a down grade, as we have already noted, going at a rapid rate of speed, seven or eight miles an hour, “coasting,” as the motorman termed it, approaching a crossing at which three streets intersect — much frequented by people on foot — and was not kept under control by him. His own testimony is to the effect that he did not have control of the car as it approached the crossing. He may have had control of the car brake, but not of the car itself. No persons were there to take passage, and he deemed it unnecessary to have his car under immediate control, intending to pass the crossing without stopping. While he testified that he sounded his gong as a warning to plaintiff, other evidence in the case is such as to justify the jury in finding to the contrary. Two cars were approaching at about the same time, and the witnesses relied upon by plaintiff to show that the gong on this particular car was not sounded testified that they did not hear it, but that they did hear the other car sound its gong. They heard the one, but not the other. This tends to show that the attention of the witnesses was directed to the matter at the time, and their evidence is not wholly of a negative character.

It was held in Watson v. Minneapolis St. Ry. Co., 53 Minn. 551, 55 N. W. 742, that it is the duty of a street railway company to use reasonable care to see that it does not injure persons passing over its tracks, to give warning of the approach of cars when persons are seen about to cross the track, and to keep its cars under reasonable control at such times. The rule of that case has always been applied by this court, and is the law by which we are guided in the case at bar. It was followed and applied in Gray v. St. Paul City Ry. Co., 87 Minn. 280, 91 N. W. 1106, and in numerous other cases. Within it the evidence presented a question of fact as to defendant’s negligence, and the verdict is not so clearly against it as to warrant interference by this court. It was apparently approved by the trial court, for the order for judgment was based upon the claim that plaintiff’s contributory negligence is conclusively shown by the evidence.

3. We come then directly to the main controversy in the case, namely/the alleged contributory negligence of plaintiff. It is firmly settled by numerous decisions of this court that the act of a pedestrian in crossing a street car track at a street crossing in a populous part of the city, without looking and listening for an approaching car, is not, as a matter of law, an act of negligence. Whether the failure to look and listen at such place be negligence in any particular case is ordinarily a question of fact to be determined by the jury. Shea v. St. Paul City Ry. Co., 50 Minn. 395, 52 N. W. 902. A pedestrian is required, however, to exercise reasonable care and prudence to avoid accidents of the kind, and his failure to do so bars a recovery.

The learned trial judge directed judgment for defendant in reliance upon Russell v. Minneapolis St. Ry. Co., 83 Minn. 304, 86 N. W. 346; and it is contended in this court that, as respects substantial facts, the cases are not distinguishable. In this we are unable to concur. Plaintiff in the case at bar was in her seventieth year, possessing such faculties of sight and hearing as persons of that age usually possess. She failed to look for the car in' question, it is true, or for a car likely to approach from that direction. But this is not conclusive against her; she was crossing the track at or near a street crossing, and her attention was attracted by a car approaching from the opposite direction of the one that struck her, and whether her failure to look for the latter was excused was a question for the jury to determine. The car approaching from the direction in which she was partly going was making considerable noise, a boy riding a bicycle was racing with it, and the motorman in charge thereof was sounding his gong; that all this attracted her attention seems a fair inference from the facts disclosed. At least, they presented a question for the jury. Reasonable minds guided by a sense of fairness might reach different conclusions therefrom. Plaintiff’s testimony on this particular phase of the case is not clear or definite. It is claimed that her mind was affected by the accident, rendering her memory uncertain. She had no distinct recollection at the time of the trial whether her attention was attracted by the car approaching from the city or not; but other witnesses testified to the fact that the gong was sounded, evidently as a warning to the boy riding the bicycle, and the boy, car, and gong were such as would naturally attract the attention of any person about to cross the street car track.

These distracting circumstances clearly distinguish this from the Russell case. In the latter there was nothing to divert the attention of plaintiff. She was. a woman about fifty-nine years of age, in possession of her mental faculties, sight, and hearing, and in full control of her movements. She was crossing the track diagonally, and in the direction in which the car which struck her was approaching. She testified that she did not know when she started to cross the street that cars were operated thereon ; she also testified that she stepped upon the street car track, and did not know that fact until the car struck her. The court held that she was so utterly unmindful of her surroundings and whereabouts as to charge her conclusively with contributory negligence. The slightest glance of the eye would have informed her of the approach of the car, yet she was not aware of the fact that she was upon the street car track. In the case at bar plaintiff’s attention was attracted by the car approaching from the other direction, at least the evidence was such as to justify the jury in so finding, and this fact clearly distinguishes it from the Russell case, for no such circumstance was there presented.

Our conclusions are that the question of plaintiff’s contributory negligence was properly submitted to the jury, and that the verdict should be sustained.

Order reversed.