155 Minn. 510 | Minn. | 1923
On Superior street, Duluth, are two street car tracks. At Seventh Avenue East plaintiff attempted to cross from, the north side of Superior street to the south side thereof to board a street car going east. He proceeded to a point between the rails of the west bound track when he stopped to let the street car approaching on the east ¡bound track pass by, as it was
The amount of recovery is not challenged, nor are there alleged errors in the rulings in respect to the admission or exclusion of testimony, nor in the statement of the law in the charge. The exception to the counsel’s argument to the jury is not made a matter of record so as to be reviewable, and no abuse of discretion is discoverable in the denial of a new trial upon the alleged newly discovered evidence.
The sole error which we may consider is that the evidence does not warrant a recovery, and hence the court should have directed a verdict for defendant, or granted judgment notwithstanding. We think there is evidence of defendant’s negligence, and that plaintiff’s contributory negligence does not appear as a matter of law. Plaintiff’s testimony is positive that he did not step back, heard no warning and that his ‘hearing was good. The motorman on the street car corroborates him in the main. That plaintiff, who was rendered unconscious, does not know what struck him is of no significance. If he stood still and made no sudden move, and the driver of the auto, who admits he saw plaintiff when more than 75 feet from him, did not have such control of the machine that the collision could have been averted, we think the jury might well find the driver guilty of negligence and plaintiff free from contributory negligence. The issues were pure questions of fact, upon which the jury’s -findings should be final.
The order is affirmed.