McDowell v. Village of Preston

May 15, 1908

Nos. 15,657—(178)

Versions:

START, C. J.

Aсtion brought in the district court of the county of Fillmore to recover damages for personal injuries which the- plaintiff claimed shе had sustained by reason of the alleged negligence of the defend*264ant in permitting one of its public streets in general use as suсh to be obstructed by a building therein. The jury returned a. verdict for her ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍in the sum of $1,400, and,the defendant appealed from an order denying its motion for judgment notwithstanding the verdict or for a new trial.

The undisputed evidence establishes these facts: A merchant in the defendant village, preparatory to the erection of a brick business block to better accommodate his business, erected, in April, 1907, in one of the public streets of the defendant, which was forty nine and one half feet wide, a temporary building in which to carry on his businеss as a retail hardware merchant. After the building was SO’ erected in the street the passageway thereon between the building and the curb of the street was ten feet and nine inches wide at the north end thereof, and some fourteen feet wide at other pоints, and afforded, under ordinary conditions, a safe way for the passage of teams and vehicles. This building was so built, occupied, and used by the merchant Until after the plaintiff was injured on July 14, 1907, with the knowledge of the village officers, but they never gave any express permission for its erection and continuance in the street. On the day last named the plaintiff, with her mother, whd was driving, was riding in a single buggy along the street when the horse became uncontrollable, ran away, and the buggy collided with the building in the street, whereby she was thrown to the ground and seriously injured.

There was also evidence tending to show that at or about the time the horse started to run either the plaintiff or her mоther attempted to raise an umbrella; and, further, that each of .them had hold of the lines while the horse was running away, and that they were calling for help. The trial judge charged the jury that the defendant was guilty of negligence in allowing the building to remain in the street for the length of time that it did. He also submitted to the jury the ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍questions whether such negligence was the proximate cause of the plaintiff’s injury, and whеther she and her mother, or either of them, were guilty of contributory negligence, and charged the jury that, if the obstruction was not the рroximate cause of the injury, or if the horse ran away in- consequence of the negligence of the plaintiff or her mother, the plaintiff could not recover. We are not prepared to say as a matter of law that the undisputed evidence was such that, *265if the mother was negligent, her negligence would be imputed to the plaintiff. The jury, however; necessarily found by their verdict that' neither the plaintiff nor her mother was guilty of contributory negligence, and the verdict in this particular is sustained by the evidence. It must, then, be assumed, in considering the other alleged errors-urged by the defendant, that the plaintiff and her mother lost control of the horse, and that he ran away without any negligence on the part of either of them.

1. The first contention of the defendant to be considеred is that the court erred in charging the jury that the defendant was negligent in permitting the building to be erected and maintained in the public strеet. The ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍instruction was correct. The evidence as to the defendant’s alleged negligence was undisputed, and the legal infеrence therefrom is that the defendant was negligent as charged. Cleveland v. City of St. Paul, 18 Minn. 255 (279); Moore v. City of Minneapolis, 19 Minn. 258 (300); Grant v. City of Stillwater, 35 Minn. 242, 28 N. W. 660; Cunningham v. City of Thief River Falls, 84 Minn. 21, 86 N. W. 763. The record does not present a case of a reasonably necessary and temporary obstruction of a public street which is incident to its improvement or the improvement of an abutting lot. On the contrary, it is a case where a merchant, desiring to-erect a new building on his lot, builds and maintains a structure in the street in which to conduct his business until he can complete his new building and it is ready for use. He so maintained and used the building in thе street for some three months before the accident happened with the knowledge of the defendant village. Such a struсture, so erected and maintained in a public street, is a nuisance, although sufficient space be left for passage оf vehicles and persons, and -the village is guilty of negligence, if, with notice thereof, it permits the street to be so obstructed. Dillon, Mun. Cоrp. §§ 383, 660.

2. The second claim of the defendant is'to the effect that it was entitled to a directed verdict in its favor, because -the evidence conclusively shows that the proximate cause of the plaintiff’s injury was the running away of the horse, and not ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the obstruction in the street. Counsel in this connection insist that the law is that: “Where a horse by reason of fright, disease, or viciousness, becomеs actually uncontrollable so that his driver cannot stop him, or direct his course, or *266regain control over his' horse, and in this condition comes upon a defeet in the highway by which an injury is occasioned, the town is not liable for the injury, unless it appears that it would have occurred if the horse had not been so uncontrollable.” This is the law in Massachusetts, Maine, Wisconsin, West Virginia, and perhаps some other states.

It would seem, however, upon principle and the weight of judicial authority, that, where a horse takеs fright, without fault of the driver, at something for which the municipality is not responsible, and gets beyond the control of the driver, runs away, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍and cоmes in contact with some obstruction or defect in the street, which is there by the negligence of the municipality, it is liable for the rеsulting injury if it would not have been sustained except for such negligence. City of Denver v. Utzler, 38 Colo. 300, 88 Pac. 143, 8 L. R. A. (N. S.) 77, and notes. Such is the law in this state, whatever may be the rule elsewhere. It is based upon the principle that, where several concurring acts or conditions of things, one of them a wrongful act or omission, produce an injury, such wrongful act or omission is to be regarded as the proximate cause of thе injury, if it be one which might reasonably have been anticipated from such act or omission, and which would not have occurred withоut it. Maher v. Winona & St. Peter R. Co., 31 Minn. 401, 18 N. W. 105; Campbell v. City of Stillwater, 32 Minn. 308, 20 N. W. 320, 50 Am. 567; Johnson v. N. W. Tel. Exch. Co., 48 Minn. 433, 51 N. W. 225; Moore v. Townsend, 76 Minn. 64, 78 N. W. 880.

Counsel for defendant urges that the rule stated has been changed by the decisions of this court in the cases of Hаnsen v. St. Paul Gaslight Co., 82 Minn. 84, 84 N. W. 727, and LaLonde v. Peake, 82 Minn. 124, 84 N. W. 726. Each of those cases is, upon its facts, clearly distinguishable from the one at bar. The defendant in this case hаving been guilty of negligence which was the proximate cause of plaintiff’s injury, it is liable therefor, although it could not have reasonably anticipated that injury would result in the particular way in which it did, in fact, happen. Christianson v. Chicago, St. P., M. & O. Ry. Co., 67 Minn. 94, 69 N. W. 640; Paquin v. Wisconsin Central Ry. Co., 99 Minn. 170, 108 N. W. 882.

Order affirmed.