128 Minn. 95 | Minn. | 1914
Second street in the city of St. Paul extends in an easterly and westerly direction along the brow of the bluff which faces the Mis
The complaint alleged, in substance, that the railway company negligently excavated a portion of the cliff wall, and caused the same to be weakened to such an extent that it was dangerous for teams to pass over Second street; that defendants negligently constructed a guard railing along the southerly side of Second street without proper foundation, and resting upon sandrock that was flush with the top or edge of the bluff, and without proper braces or supports to prevent the guard railing from falling over the bluff when pressure was applied upon Second street at the place of the accident; that the city negligently constructed Second street too close to the edge of the bluff for the same to sustain the weight of traffic without great danger to the drivers of vehicles traveling thereon; and that defendants negligently failed to inspect and ascertain the condition of said street and to keep it in proper condition for the public to travel safely.
The court submitted the case to the jury in a very clear and accurate charge, in which he carefully defined the rights and duties of both defendants, and the facts which must appear in order to
“There is no duty resting upon either of the defendants to build a fence which in and of itself would be strong enough to withstand the force of a load of this kind backing up against it with force as this load is shown to have done. The degree of care required of either of the defendants is not so great as to require a fence that would-absolutely stop a load of that kind when backed with, violence against it; nor does the city provide curbs for the purpose of brakes or for the purpose of stopping a wagon which is being backed up. The curb is not designed or prepared for that purpose, and the city is not obliged to prepare a fence or a curb that would be strong enough to withstand the force of a load of this kind backing down against it, and the only question, as I have said before, is whether or not the lateral support, the side support of this street, had been so weakened through the operations and excavations of the defendant company here, that some portion of the street upon which a traveler had a right to rely as being safe and reasonably substantial gave way and went down, and for that reason precipitated Mr. Kimball over the cliff. That is the real quéstion in the case.
" “If you are unable to find a fair preponderance of the evidence that any usable portion of this street, any portion of it which a traveler had a right to rely upon as being reasonably safe, was weakened and caused to give way on account of the manner in which the Omaha Kailroad Company excavated this cliff — I say, if you are unable to find that from a fair preponderance of the evidence, your verdict will have to be in favor of both of the defendants in this case. But if, from a fair preponderance of the evidence, you are able to find that by reason of the manner in which this cliff was excavated, some portion of the street upon which a traveler had a right to rely as being reasonably safe, was weakened and caused to give way, and on account of that Mr. Kimball was precipitated over the precipice and was killed, and also find that he was in no manner guilty of a failure to use ordinary care for his own safety under the circumstances' at that time, then you will be obliged to return a verdict in favor of the plaintiff.”
The court also charged the jury that their verdict should either be in favor of both defendants, or against both defendants. The.cutting away of the bluff had been done by the railway company, but the city had full knowledge of the situation, and, under the evidence in this case, such an instruction was proper. Fortmeyer v. National Biscuit Co. 116 Minn. 158, 133 N. W. 461, 37 L.R.A.(N.S.) 569.
The instructions tendered by defendants, so far as correct, were sufficiently covered by the general charge.
No errors appearing, the judgment appealed from is affirmed.