102 Minn. 435 | Minn. | 1907
On September 6, 1905, the plaintiff, as she claims, sustained personal injuries while she was in the act of alighting, as a passenger, from one of the defendant’s electric cars. She brought this -action on October 5, 1906, to recover damages for her injuries on the ground, as alleged in her complaint, that they were caused by the negligence of the defendant in starting the car and closing the.gates before she was off the car, whereby she was thrown with great force to the ground and seriously injured. The answer put in issue the allegations of the complaint. The plaintiff had a verdict for $3,000, and the defendant appealed from an order denying its motion for judgment or a new trial.
The first contention of the defendant is that upon the undisputed evidence the defendant, as a matter of law, was entitled to a directed verdict in its favor. The merits of this claim depend largely upon whether the plaintiff was a passenger at the time she fell from the car. This question was submitted to the-jury by the trial court, and under its instructions the jury must have found that the plaintiff was a passenger. Is this finding sustained by the evidence? The defendant claims that it is not, and, further, that the trial court erred in its rulings as to the admission of evidence and in its instructions with reference to this question.
The evidence tends to show that the, plaintiff, on the evening of the day the accident occurred, at about dusk, was -standing on the easterly side of Emerson avenue, in Minneapolis, across which the defendant’s car line ran; that she was waiting for an easterly bound car to take her down town, when a car approached, slowed down as it neared the crossing, and when it was about fifteen feet east thereof it came to a stop and the motorman opened the gates to take on passengers; and, further, that the plaintiff and another waiting pas
The court instructed the jury fully as to what would constitute the plaintiff a passenger on the car, and to the effect that if, in what the motorman and conductor did and failed to do in stopping the car and opening the gates, she had reason to believe that the car at that time was intended to carry passengers, and, so believing, she in good faith boarded the car, she was, for the purposes of this case, a passenger on the car, and continued to be until she was given a reasonable time and opportunity to leave it in safety; and, further, if she saw the sign “Not in Service” on the car, still, in view of all the evidence, it was a question for the jury whether or not she had good reason to believe and did believe in good faith that the car carried passengers. The defendant excepted to these instructions, and to the refusal of the court to give certain requested instructions as to the question whether the plaintiff was a passenger, which were not in harmony with the instructions given. The defendant here urges that the court erred in giving the instructions and in refusing those which it requested.
We are of the opinion that the court did riot so err, for the instructions as given were a correct statement of the law and applicable to this case. We are also of the opinion that the evidence was sufficient
The question, then, is, was the defendant entitled to a directed verdict, as a matter of strict legal right, in view of the fact that the plaintiff was entitled to the rights of a passenger until she was off the car ? The testimony of the plaintiff tended to show that the car came to a stop, the gates opened, and' she got on the car; that when she was in the door of the car, and about to go forward into the car, having in her hands a picture, her parasol, and purse, the conductor called to her, “This car takes no passengers,” and repeated it, from which she understood that he intended that she should get off, which she started to do; that when she was on the bottom step of the car, and in the act of stepping to the ground, the car started forward, the gates began to close, and she was thrown to the ground, and that this was the last she knew until she regained consciousness, when she found herself on her back on the ground, and that she was seriously injured by the fall. A lady friend of the plaintiff, who saw her take the car, testified to the effect that the car came to a stop, the gates opened and the plaintiff got onto it, and that it was not then moving. The conductor testified, in effect, that when the plaintiff boarded the car it was still moving just a trifle, and when he told her that the car did not take passengers he meant that she was to get off, and when he said it she turned around and walked off — got off. When she did so the car had not come to a standstill. It was moving just a little. It was moving all the time. He further testified that he knew the car was moving and that she was going to get off, but that she did not give him time to say, “Wait until the car stops.” The cross-examination of the plaintiff was adroit and subtle, and some of her answers to questions of counsel were confused and contradictory, and tended in some material particulars to modify her testimony in chief. Her cross-examination, and the assumed fact that the car was moving when she attempted to get off the car, is the basis of an earnest claim by defendant’s counsel that the plaintiff’s testimony is utterly unreliable, inherently improbable, affords no basis for a finding of negligence on the part of defendant, and conclusively shows that her own •negligence was the sole cause of her alleged injuries.
The defendant urges several alleged errors in the admission of evidence which it insists entitles it to a new trial. Medical experts called by the plaintiff were permitted, over objection, to give an opinion as to the cause of her physical condition, based upon the assumption that tiie testimony given on the trial was true. This is urged as error, as an invasion of the province of the jury. The question thus raised is not an open one in this state, for this court has repeatedly held that such opinion evidence is admissible. We adhere to the rule. Cooper v. St. Paul City Ry. Co., 54 Minn. 379, 56 N. W. 42; Donnelly v. St. Paul City Ry. Co., 70 Minn. 278, 73 N. W. 157; Joyce v. St. Paul City Ry. Co., 70 Minn. 339, 73 N. W. 158; Decker v. Chicago, M. & St. P. Ry. Co., supra, p. 99, 112 N. W. 901.
The defendant asked one or more of the medical experts the following questions: “Q. And is it not a fact, is it not generally conceded 'in your profession, doctor, that in cases where parties suffer from that disease [neurasthenia], where they have a claim, that when the claim is settled, or the lawsuit determined, that then when the cause, to wit, the worry, ceases, that then, also the repair comes of the disease?” “Q. Do or do not the gentlemen of your profession as a general thing, or at all, undertake to cure or heal or treat neurasthenia, while the cause, while the worry, the object of the worry, is still existing?” The plaintiff objected to the questions on the ground that they were incompetent, immaterial, and no foundation laid. The court sustained the objections. There was evidence tending to show that the plaintiff was suffering from neurasthenia. The rulings are urged as error only in these words: “Assignments eleven and fifteen raise the question whether it should not be proper in a suit of this kind, where neurasthenia is claimed to exist, to show the effect of the existence and pendency of a lawsuit on the prognosis of the disease, so that the jury may take into consideration how much of the trouble is liable to disappear or become ameliorated upon the termination of the suit. It seems to me this should be allowed.”
We assume that these are the best reasons that can be urged in favor of the admissibility of the proposed evidence. The defendant’s
Other assignments of error are urged.as a ground for a new trial; but we have considered them, and find no reversible error therein.
Order affirmed.