274 N.W. 532 | Minn. | 1937
1. Defendant claims that the verdict is not sustained by the evidence and is contrary to law. Plaintiff at the time of the accident was 77 years old and walked with the aid of a cane. She and a woman companion, 79 years old, purchased their tickets for the trip from Minneapolis to Alexandria and followed a porter employed by defendant, who carried their baggage, out of the waiting room to the loading platform, to get on the bus. Some 20 or 30 people were out there to get on the same bus.
Plaintiff's version of the accident is that she was crowded over to the edge of the platform by this crowd of people who were pushing and jostling in their efforts to get on the bus. The platform was about six and one-half inches high. While she was standing on the edge of the platform, one of defendant's porters came along with four or five parcels or articles of baggage, two of which he carried under his arms and the others in his hands, and crowded through the people on the platform and against plaintiff and pushed her off the platform so that she fell on the floor in the adjoining bus stall. As a result of the fall plaintiff sustained a fracture of her hip and other severe injuries, from which she was confined in the hospital for over five months. Defendant's version is that plaintiff *447 was not pushed off the platform but that, on the contrary, her fall was caused by her own act.
Plaintiff based her right of recovery solely on the negligence of the porter in pushing her so as to cause her to fall off the platform. She claims that he pushed her in going through the crowd carrying baggage under his arms and that this push caused her to fall. A party may be held liable for injuries caused by failing to exercise reasonable care in respect to the safety of a person to whom he owes the duty to exercise such care. In Feeney v. Mehlinger,
Plaintiff was a passenger at the time of the accident. A common carrier is required to exercise reasonable care not to injure a passenger while in the depot or station waiting to depart on a train or bus. Hull v. M. St. P. S. S. M. Ry. Co.
It appears without dispute that plaintiff at the time of the accident was 77 years old and was walking with a cane. The porter knew her condition. The degree of care to be exercised in the case of persons under physical or mental disability is that which is reasonably necessary for the safety of such person in view of his condition. Croom v. C. M. St. P. Ry. Co.
2. Defendant contends that a new trial should have been granted because plaintiff failed to establish the manner in which the accident occurred, claiming that her evidence wasin equilibrio, citing Swenson v. Erlandson,
3. It is urged that the verdict is against the weight of the evidence in that plaintiff's case rests upon her own testimony while the defense is established by five witnesses. The number of witnesses does not establish the weight of the evidence, for "weight of evidence is not a question of mathematics, but depends on its effect in inducing belief," Braunschweiger v. Waits,
Defendant relies upon Messenger v. St. Paul City Ry. Co.
Numerous considerations pertaining to the testimony of defendant's witnesses justified the jury in accepting plaintiff's and rejecting defendant's version of the accident. Defendant's witnesses contradicted each other. One said that plaintiff stepped from the platform; another that she fell without any reason: still another that she ran off the platform. Two witnesses testified that she walked straight out from the bus gate and fell forward on her knees. The testimony of the witness that she ran off the platform not only contradicts the other witnesses but is so improbable upon its face that the jury may well have rejected it, because all the evidence shows that plaintiff was an infirm woman, 77 years of age, who could not run and could walk only with the aid of a cane. Two of these witnesses testified that all the people who were about to get on the bus turned to the right after they came through the gate. The undisputed testimony is that if they had turned to the right they would have walked past the front of the bus and not out on the loading platform, which projects straight out from the gate. Some of defendant's witnesses were impeached. For example, the porter whom plaintiff claims pushed her off the platform testified that he left the baggage at the bus gate and did not go out through the crowd with the baggage under his arms. On cross-examination this porter testified that he left the baggage by the bus door, which was out on the loading platform, some distance from the gate where he said on direct examination he left the baggage. Other witnesses for defendant testified that this porter carried the baggage through the crowd, and some said he went around the crowd to the bus. There are other contradictions in the testimony of defendant's witnesses. It is improbable that plaintiff would have walked so as to fall forward on her knees, and it is still more improbable, if she had fallen on her knees, that she *453
would have sustained the injuries which she admittedly did sustain. The medical testimony shows that plaintiff's knees were not marked or bruised or injured in any manner immediately after the accident. It does show, however, that her hip was broken and that her injuries were on that part of the body upon which she claims she fell. If she fell upon her knees, it is reasonable to infer that there would have been some injuries, marks, or bruises on her knees as a result of the fall. Fair-minded men might reasonably draw different conclusions from the evidence. Upon this conflicting evidence the question was for the jury. Rimmer v. Cohen,
4. It is claimed that the court erred in refusing to give two requested instructions. The first request was for an instruction that as to its floors, floor levels, and conveniences in and about the bus depot, provided by defendant for its passengers, defendant had discharged its duty when reasonable and ordinary care to make them safe for the purposes intended had been exercised in their construction and maintenance. The second requested instruction was that there was no evidence of any negligence on the part of defendant in the construction or maintenance of the bus station. It is conceded that the court correctly defined the issues submitted to the jury and the defendant's duty to exercise due care. The instructions given carefully limited the jury to a consideration of two issues, the negligence of the porter in pushing plaintiff and causing her to fall, and the contributory negligence, if any, of plaintiff. The court very carefully instructed the jury that these were the only two matters to be considered. Neither of the requested instructions was applicable to the issues in this case. While it is true that plaintiff alleged negligence with respect to these matters in the complaint, the evidence was confined to the question of whether or not the porter negligently pushed plaintiff and caused her to fall. There was no claim in the evidence, nor *454
was the question submitted in the instructions, that defendant was negligent in the construction or maintenance of the bus depot. The scope of an instruction is to be determined not alone by the pleadings but also by the evidence in support of the issues between the parties, and even though an issue is raised by the pleadings, it is not proper to give an abstract, admittedly correct, instruction on such issue where there is no basis for it in the evidence. State v. Whitman,
It is claimed that the instructions should have been given because the complaint and an amendment to it were in evidence. These were introduced in evidence by defendant. The introduction of the complaint and the amendment did not introduce issues upon the question of defendant's negligence in the construction or maintenance of the bus depot. The instructions given by the court fully covered the only issues which the jury had to consider.
The order is affirmed.