59 Minn. 45 | Minn. | 1894
Lead Opinion
This is one of a class of cases frequently appealed to this court, involving issues purely of fact, where we have considerable doubt whether those issues were rightly decided, but the evidence is such that an appellate court would not be warranted in disturbing the verdict of the jury. In determining whether the injury to the plaintiff was caused by his own negligence or by that of defendant’s servants, the most important, if not the decisive, question was whether the plaintiff attempted to drive across the railway track in front of an approaching car already in motion, or whether, when he drove upon the track, the car was standing still, but was afterwards started, and struck his vehicle before he had time to get across. If the former was the fact, he could not recover, for it would be the grossest kind of negligence to attempt to drive across the track right in front of an approaching car, and within so short a distance of it that the motoneer could not, in the exercise of reasonable diligence, stop the car in time to prevent a collision. On the other hand, if the car was standing still when plaintiff started across the track, we think that, notwithstanding the fact that he knew that the car would shortly start, the questions of the motoneer’s negligence and of plaintiff’s contributory negligence were for the jury.
While we are impressed, as the trial judge seems to have been, with the feeling that the evidence of contributory negligence was quite strong, yet, if plaintiff is to be believed (which was a question for the j ury), his act was not an attempt to swing across the track in front of an approaching car, nor an attempt to cross heedlessly, without regard to existing conditions, but an attempt to cross in front of a car that was standing still, and which did not start until his horse was upon the track. In view of the relative rights of street cars and other vehicles in the streets, as defined by this court in Shea v. St. Paul City Ry. Co., 50 Minn. 395, (52 N. W. 902,) and
Taking, as a basis of calculation, the testimony of witnesses as to the relative rates of speed of the car and of plaintiff’s vehicle, and the distance traveled by each from its starting point, counsel for defendant attempts a mathematical demonstration that the car must have been in motion before plaintiff drove upon the track. This kind of an argument is frequently resorted to in this class of cases, and, like any other mathematical demonstration, would be conclusive, if it was certain that the premises assumed were correct. But experience teaches that witnesses are usually exceedingly inaccurate in their estimates of short distances and short periods of time, as well as of rates of speed, and hence arguments founded on such bases are often fallacious, and seldom conclusive.
Defendant also claims that the only allegation of negligence in the complaint is the failure of the motoneer to ring the gong before starting the car, and that upon that issue the plaintiff failed to establish his case by evidence. Without stopping to consider whether this is the correct construction of the language of the complaint, it is enough to say that it is apparent from the record that the case was not tried upon any such narrow construction of the pleading. As the case was tried and submitted to the jury, particularly in the charge of the court, it is clear that the alleged failure to ring the gong was only one, and that not the most important, of the issues litigated by consent of the parties.
We agree with the trial judge that the newly-discovered evidence was merely cumulative, and are of opinion that there was no error iii his refusing a new trial on that ground.
2. But, while we are of opinion that we cannot interfere with the finding of the jury on the issues of negligence and contributory
It appears from the evidence that, when the car (which by this time had been slowed up to a low rate of speed) collided with plaintiff’s wagon, his foot was caught between the car and the wagon. The only injury plaintiff sustained was to this foot. The only important evidence as to the nature and extent of these injuries is the testimony of the plaintiff himself, and of his attending physician. Both agree that no bones were broken, but that the foot, particularly the heel, was quite seriously bruised, and swelled up badly, and was quite painful. It was some six weeks before plaintiff could walk on it, during which time he had to use crutches, and was incapacitated in whole or in part from attending to his business, which was that of a laundryman. The plaintiff testified that at the time of the trial, which was about six months after the injury, there was a numbness or lack of feeling in some of his toes, and that his foot or ankle still pained him when he set his weight down on it, and that it pained him quite badly at certain changes of the weather.
The physician testified that the foot was badly bruised on both the sides and back of the heel, and that the muscles were contused. He also testified that it was his opinion, in view of the position in which he found the foot, that the ligaments at the side of the heel had been distended or torn from their attachments, and if so they would never come back to their place, unless new tissue be formed, and as a consequence the ankle would be permanently weakened, or its movement impaired so as to be liable to turn to one side, particularly in fast walking or jumping. Here, then, we have a case of badly-bruised foot (but no bones broken), which incapacitated plaintiff from walking on it, and compelled him to use crutches
Conceding that the evidence establishes the fact that the ankle will be permanently weaker than before, there is no evidence that this does or will diminish plaintiff’s earning capacity, or at all interfere with his going about his business, or with his walking in any usual or ordinary way. If $3,000 is to be allowed for such an injury, at what sums shall the loss of a foot, a hand, a leg, or arm be estimated? At the same ratio such losses would warrant recoveries far beyond any precedent, and which would be liable to bankrupt any business in the country.
The proper test is not what counsel for plaintiff suggested on the argument, viz. for what sum would any one be willing to suffer such an injury. Most people would be unwilling to lose a limb for all the gold in the world. But the law does not assume to compensate injured persons on any such basis. There is a sense in which no amount of money will compensate a man for a serious, permanent, personal injury. But all the law attempts to do is to compensate him as far as money will do it; and for manifest, practical considerations, there must be some reasonable limit to the amount of this compensation.
Our conclusion is that, giving the plaintiff the benefit of everything which the evidence at all tends to prove, and allowing him the largest amount which that evidence would warrant, a verdict in excess of $2,100 ought not to be sustained.
Ordered, that a new trial be granted, unless the plaintiff, within
Rehearing
On Rehearing.
(Nov. 10, 1894.)
This motion is made solely on the ground that the court overlooked defendant’s seventh assignment of error, to wit, that the trial court erred in refusing to instruct the jury “that there is no evidence to establish the failure of defendant to ring the bellthat is, the motoneer’s gong.
While the evidence on this point was not of the most satisfactory nature, yet we think it made a case for the jury.
The evidence on behalf of the plaintiff was not wholly of the ordinary merely negative character. For example,' one bystander testified that he heard two rings of the conductor’s small hell, hut heard no gong sounded by the motoneer.
Motion dénied.
(Opinion published GO N. W. 810.)
