73 Minn. 252 | Minn. | 1898
On September 24, 1890, the plaintiff was struck by one of the defendant’s cable cars at the intersection of Selby avenue and Grotto street, in the city of St. Paul, and seriously injured. This action was brought to recover damages for such injuries. At the close of the evidence, the trial court instructed the jury to return a verdict for the defendant, on the ground that the evidence failed to establish any negligence on the part of the defendant, but did conclusively establish plaintiff’s contributory negligence in the premises. The plaintiff appealed from an order denying his motion for a new trial.
The undisputed evidence establishes these facts: The plaintiff was a man 62 years of age, and was working for Mr. Louis Shepley, who was grading and paving Selby avenue from the outside rail of defendant’s railway track to the curbing, under a contract with the city. The plaintiff had been at work three days prior to his injury, and was at the time of the injury engaged with his team in hauling sand to be placed upon the street. He had driven north on Grotto street with a load of sand to be dumped on Selby avenue, and had been directed by Mr. Shepley’s foreman to drive across the
Before picking up the plank at the pile of planks, he looked to see if a car was approaching, and saw none, although he had a clear view of the track for 124 feet to the west, whence the car came which struck him. He did not again look for an approaching car, but carried the plank 48 feet to the track, where it was to be used; and when standing on the outside of the plank, and in a place of safety if he stood erect, he stooped down to adjust the plank, thereby thrusting his head forward into a place of danger, without once looking to see if a car was approaching.
The evidence discloses no reason for his failure so to look. There was nothing to distract his attention. He knew the cars passed the place frequently. He was not frightened, bewildered or misled, and the slightest care on his part for his own safety would have prevented his injury. There was no evidence in the case tending to show that the defendant was guilty of any gross or wanton negligence in the premises. On the contrary, it tends to show, that its employees in charge of the car were not blamable for the accident. The motoneer saw the plaintiff some 20 feet away, as he was standing beside the track, having just thrown the plank down. The evidence indicates that the motoneer could not reasonably have anticipated that the plaintiff would stoop over to adjust the plank be
Order affirmed.