28 F. 305 | U.S. Circuit Court for the District of Minnesota | 1886
This case was fairly presented to the jury, and the evidence warranted the verdict rendered, provided there was no error of law committed by the court. It appeared from the evidence that there was a pile of lumber near the center of Chestnut street, in the city of St. Paul, at a point between the crossing of several railroad tracks and the Mississippi river. The plaintiff’s intestate, driving a horse and wagon on this street, towards the river, had passed the tracks, when his horse, frightened by tho whistle of a locomotive, became unmanageable, and, coming in contact with this pile of lumber, the wagon was overturned, and the driver thereof hurt and in
I think the instructions given correct.
1. In regard to the duty of the municipal government, the court instructed the jury as follows:
“The gist of the action is the alleged negligence of the city of St. Paul, which caused the death of plaintiff’s intestate, and it is charged that an obstruction permitted to remain upon a public street was negligence upon the part of the city. * * * It is indispensable that plaintiff satisfies you by competent evidence that Chestnut street was a public thoroughfare, open and under control of the city at the place where the lumber was piled, so as to impose the duty upon the city authorities of keeping it in a safe condition for travel. It is admitted by the city attorney that Chestnut street was in fact a graded street, open for travel, * * * but urged that at the point where the injury occurred it was not open for travel, * * * and that any person who used it did so at his own peril. How, that is a question for you to determine upon the evidence produced before you. It is not necessary that there should be any formal acceptance of this street as a public street. * * * It is not necessary that there should be official action of the city by resolution or ordinance opening it as a public street. If there was any user permitted by the city upon this street; if the public were all invited, without any dissent by the city, to use it as a public street, — then, the city would be required, under its charter and ordinance, to put it in a reasonably safe condition, according to the character of the street and the amount of travel upon it. The supreme court of this state well said in the case of Phelps v. City of Mankato, 23 Minn. 276: ‘It is immaterial how a public street in the city became such, whether by formal acceptance and official action of the city, or by acceptance and user by the public, so far as regards the duty of the city to keep it in safe condition.’ So that it [the liability of the city] depends upon the evidence introduced before you whether this street, at the point where the deceased was injured, was a public street over which the city had control, and was required to keep in a safe condition.”
2. The court also instructed the jury:
“The injury it is claimed was the result of an accident for which neither deceased nor defendant was responsible, and the alleged negligence of the city. In passing over railroad tracks, the steam escaping- from a locomotive frightened the horse, and, becoming unmanageable, he ran upon this obstruction in the street. If the obstacle had not been there, the injury would not have occurred. Where an injury occurs from the combined result of such accident and negligence, the party who is negligent is liable.”-
The court further instructed the jury that if they should determine that the pile of lumber was an obstruction -which should have been
Motion for new trial denied.