111 Minn. 244 | Minn. | 1910
Action to recover for the death of plaintiff’s intestate, caused, as she alleges, by the negligence of defendant. Plaintiff had a verdict, and defendant appealed from an order denying its alternative motion for judgment notwithstanding the verdict or for a new trial.
The accident complained of happened on defendant’s car line on Third street, near Eorty-Eifth Avenue West, in the city of Duluth, at a point midway between intersecting cross-streets, on November 27, 1907, at six o’clock in the evening. A head-on collision between defendant’s car and the vehicle driven by decedent resulted in the latter’s death. The car in question was operated by electric power, and was proceeding from West Duluth to the city of Duluth. It was equipped with electric lights inside, and with a headlight on the front end of the car, lighted from the same power which propelled' the car. The street is a broad thoroughfare, and in good condition for travel on both sides of the single car track at this point. The evidence tends to show that the ear was being run at the rate of between fifteen and twenty miles an hour, not prohibited by the city ordinances; that its lights were all burning, and could be seen a considerable distance by a person looking in the direction from which the car was approaching.
Decedent, thirty-nine years of age, was in the employ of the Crescent Bakery Company as driver of one of its delivery wagons. At the time of the accident he was proceeding with his wagon to West Duluth along the street upon which defendant’s street cars are oper
Aside from the question of defendant’s negligence, which we pass with the remark that it is1 exceedingly doubtful whether a case of actionable negligence was made, out, we are clear that decedent was chargeable with contributory negligence, bordering on recklessness, and plaintiff cannot recover. Wosika v. St. Paul City Ry. Co., 80 Minn. 364, 83 N. W. 386; Russell v. Minneapolis St. Ry. Co., 83 Minn. 304, 86 N. W. 346; Baly v. St. Paul City Ry. Co., 90 Minn. 39, 95 N. W. 757. He was familiar with his surroundings, well knew that street cars passed frequently along, the street, and in this sparsely settled section of the city more rapidly than elsewhere. Had he looked forward in the direction from which the car was approaching him, he could easily have seen it, yet he deliberately drove Ihis team partly upon the car track, when there was ample room on cither side thereof. The night was dark, and he must have been aware of the fact that the motorman could not see in advance of his car any considerable distance. If under such circumstances, and the evidence is undisputed, contributory negligence does not follow as a matter of law, there is not much of the doctrine left.
Counsel insist that the rule that deceased persons will be presumed to have exercised reasonable care for their protection should be ap
Discovering, therefore, no excuse for the conduct of decedent, it is held that he was guilty of contributory negligence as a matter of law, and plaintiff cannot recover.
Order reversed, and judgment ordered for defendant.