Johnson v. Johnson

Brown, C. J.

Action for personal injuries claimed to have been suffered by plaintiff by reason of the alleged negligence of defendant. Plaintiff had a verdict and defendant appealed from an order denying^ a new trial.

The assignments of error present the question whether the evidence is sufficient to justify a finding of negligence on the part of defendant and to exonerate plaintiff from the charge of contributory negligence. An examination of the record leads to an affirmative answer to the question.

The record presents evidence from which the jury might find the following facts: Plaintiff had alighted from a street ear at the corner of Washington avenue and First street south in Minneapolis, a populous part of the city where there is much street car and other traffic, on the early morning of December 21, 1915, and as he passed around the rear end of the ear was struck and injured by an automobile operated by defendant. There is no dispute as to the time, the place or manner of plaintiff’s injury, though there is a controversy in the evidence upon other points. The street car made what is known as a "near side stop,’’ and plaintiff passed around the rear end of the car intending to cross *200 the street. He testified that he listened for an approaching car upon the adjoining parallel street car track, which he would have' to cross to reach his intended destination, and that, as he stepped from the rear of the car to look in the direction from which a car or other vehicle might be approaching, he was struck by the automobile, which was running without signal upon the adjoining ear track and close to the standing street ear from which he had just alighted. The testimony of a policeman who saw the automobile coming down the street just prior to the accident was that it was running in the center of the street, partly upon the street ear track, and at about 15 miles an hour. He heard no signal as it approached the standing street car. He did not witness the accident, nor did he know just where the car was at the time it struck plaintiff, though immediately thereafter it was between the street car track and the sidewalk, while plaintiff lay in the space between the two street car tracks. Defendant testified that he had slowed down his automobile before reaching the street car, and at the time of the accident was not running beyond 8 or 10 miles an hour. He denied that he passed close to the street car, and testified that the automobile was astride the outer rail of the car track, which would leave a space between the automobile and the car of about 6 or more feet. He further testified that, as he approached the street car, plaintiff suddenly ran out from behind the same, and though defendant made every effort to prevent striking him was unable to do so. That he made this effort is clear, for when his car was stopped it was between the car tracks and the street curb. In this state of the evidence the questions presented were for the jury. The court below approved the verdict, and that conclusion is not clearly or manifestly against the evidence.

The law applicable to the facts, as necessarily found by the jury, is clear. Defendant as he approached the standing street car, at the regular stopping place, was bound to have his automobile under control, and give the usual signals of -approach, in anticipation of the probable sudden appearance of persons passing around the rear end of the street car. The case is no different from what it would have been had plaintiff been struck and injured by a street car, -approaching without warning at a high rate of speed upon the adjoining track, and from the direction in which defendant came with his automobile. In such a *201 case the questions of negligence and contributory negligence have been held, upon evidence not substantially different from that here presented, properly submitted to the jury. Fonda v. St. Paul City R. Co. 71 Minn. 438 , 74 N. W. 166 , 70 Am. St. 341; Bremer v. St. Paul City R. Co. 107 Minn. 326 , 120 N. W. 382 , 21 L.R.A. (N.S.) 887. See also upon the issue" of contributory negligence, Day v. Duluth Street Ry. Co. 121 Minn. 445 , 141 N. W. 795 . That view of the law, as applied to automobiles being operated at a high rate of speed close to a standing street car which had stopped to discharge passengers, is sustained by the authorities. Kauffman v. Nelson, 225 Pa. St. 174, 175, 73 Atl. 1105 ; Minor v. Mapes, 102 Ark. 351 , 144 S. W. 219 , 39 L.R.A.(N.S.) 214; Marsh v. Boyden, 33 R. I. 519, 82 Atl. 393 , 40 L.R.A. (N.S.) 582; and citations collected in note to Baker v. Close, 38 L.R.A.(N.S.) at page 493. We therefore hold that the questions of negligence 'and contributory negligence were properly submitted to the jury, and the evidence sustains the verdict.

Order affirmed.