233 Minn. 227 | Minn. | 1951
Appeal from an order denying a motion for a new trial.
Bloomington avenue, which runs in a north-south direction, intersects Lake street, which runs east and west. Double sets of streetcar tracks run along both streets. The intersection is protected by traffic lights on all corners.
On August 17, 1918, at one o’clock in the afternoon, plaintiff, while walking across Lake street from the northwest to the southwest corner of the intersection, was struck by a Chevrolet truck owned by defendant Western Union Telegraph Company and then being driven by defendant Gerald C. Moen while in the course of his employment.
Prior to the accident, plaintiff had crossed Bloomington avenue from the northeast to the northwest corner of the intersection. She waited for the traffic signals to turn and then proceeded to cross Lake street, walking in a southerly direction. Defendant Moen had approached the intersection from the south. He slowed up to permit a car coming from the north to pass him, then made a sharp turn to the left, and proceeded in a westerly direction along Lake street. His testimony was that he was going about sis to eight miles per hour and that he saw no one in his path. He struck plaintiff when she was about on the north streetcar
Plaintiff testified that before proceeding to cross the street she looked both ways, that she saw nothing coming, and that when she was about on the streetcar tracks she saw defendants’ truck coming toward her about seven or eight feet away. She tried to get out of the way, but did not have time to do so. She said that she was about in the center of the crosswalk.
Plaintiff suffered a fracture of the tuberosity of the left humerus, which is the upper end of the arm bone close to the shoulder, and other injuries, including multiple contusions and abrasions. The court directed the jury to return a verdict in plaintiff’s favor on the question of liability, leaving for the jury only a determination of the amount of damages. The jury returned a verdict in plaintiff’s favor of $12,500.
It is the contention of defendants that the court erred in directing a verdict on the issue of liability and that the verdict is so excessive that it appears to be based on passion and prejudice.
Principally, it is the contention of defendants that the evidence is conflicting as to whether plaintiff was within or west of the crosswalk at the time she was hit and that if she was west of the crosswalk it was her duty to yield the right of way to Moen under M. S. A. 169.21, subd. 8.
The record is quite barren of anything to show the width of the crosswalk. It does appear that the crosswalk lines were faintly visible. Plaintiff herself testified that she was within the crosswalk. She called two police officers who appeared at the scene -of the accident shortly after it happened. Officer Barney P. Everson testified that Moen pointed out the location of the impact and that it was 16 or 17 feet west of the Bloomington avenne curb line. Officer Howard Gray testified that he measured the distance from the curb line to the point of impact as pointed
“Q. Will you point out where the accident occurred, did you observe where with reference to the pedestrian crosswalk?
“A. It was in the crosswalk.”
Kenneth Blake, a motorman on a streetcar standing on Lake street facing east, who was an eyewitness to the accident, testified:
“Q. Where was she with reference to the crosswalk?
“A. She was in the crosswalk.”
Defendant Moen stated that plaintiff was eight feet west of the crosswalk. He called as his witness Benjamin F. Brandon, who appeared shortly after the accident. Brandon testified that when he appeared plaintiff was on the ground about 10 or 12 feet west of the crosswalk. On cross-examination, plaintiff introduced a statement signed by Brandon prior to the trial, which statement was admitted without objection. Prior to its admission, Brandon stated that it was given voluntarily and that the statements in it were true. In this statement he said that he saw the truck stop; that the front end of the truck was 12 to 15 feet west of the Bloomington avenue curb line; and that when he appeared at the scene of the accident plaintiff was lying in front of the truck. Taking the testimony of Officer Gray, which is the only testimony that might indicate the distance between the west line of the crosswalk and the west curb line of Bloomington avenue, it must appear that the west crosswalk line was at least 16 feet west of the Bloomington avenue curb line. That would place the front end of the truck, according to the testimony of Brandon, within the crosswalk when it stopped; and, even if we can assume that the truck stopped without moving after the impact, which hardly seems possible, plaintiff would still be within the crosswalk when hit. As against all this testimony, we have the testimony of Moen alone. His testimony is far from
What has been said about defendants’ negligence is equally applicable to plaintiff’s contributory negligence. We find no evidence which would warrant submission of plaintiff’s contributory negligence to the jury. Under these circumstances, the court properly directed a verdict on the issue of defendants’ liability.
Defendants next contend that the verdict is so excessive that it must have been based on passion and prejudice. Plaintiff was a woman in good health, 52 years of age. Prior to the accident, she had been employed six and one-half years as a cashier in a “super” market, earning about $áá per week. She suffered a fracture of the tuberosity of the humerus, which is the upper end of the arm bone just below the shoulder where the muscle and ligaments attach to
Defendants contend also that it was error to refuse to permit the witness Brandon to explain a discrepancy between his testimony and the written statement given to plaintiff’s counsel prior to the time of the trial. We fail to see any such discrepancy. Brandon testified that he found plaintiff 10 to 12 feet west of the crosswalk after the accident. He did not see her prior to the accident and had no knowledge of where she was at the time she was struck. The written statement contains the following:
“* * * After the truck stopped the front end was about 12-15 feet west of the West Bloomington curb line and approximately*233 on the northerly Lake Street streetcar tracks. The woman was laying in front of the truck.”
It does not state how far in front of the truck she was lying. He was not asked anything about the truck while on the witness stand. Whether plaintiff was pushed after being struck or whether she fell in the direction from which the force came is something Brandon could not know. He said that the written statement was true when given and that it was true at the time of the trial. Under these circumstances, there was nothing for him to explain. We see no error on the part of the trial court in refusing to permit the witness to offer such explanation.
Affirmed.