88 Minn. 48 | Minn. | 1902
Action to recover for personal injuries sustained by plaintiff while attempting to pass in front of an electric street car in St. Paul on the night of December 14, 1901. At the close of the evi-' dence the court ordered a verdict for defendant, and the only material question upon this review is whether there was evidence requiring the submission of the cause to the jury.
Defendant’s railway tracks are laid upon Payne avenue, in the city of St. Paul, over which it operates its electric cars. On a still, clear, winter night, plaintiff and a friend left a saloon at the southeast corner of this avenue and Wells street about twelve o’clock, with the intention of walking along Wells street, and crossing the car tracks thereon. At the curb, before starting, the plaintiff looked toward the south, and saw the headlight of an electric car approaching in that direction. An estimate of its distance from the crossing at that moment was one hundred eighty-five feet, or about half a block, which must have been largely a matter of cón
While the rule applicable to travelers on highways, approaching steam railway crossings, requiring them to look and listen, does not apply with the same force to street railways, yet the distinction rests in a measure upon the fact that in the latter instance the use and occupation of the streets are equally open to pedestrians with the car company, and also that the mutual enjoyment of the use of highways and street car tracks is calculated to divert the attention of the traveler, by reason of the proximity of teams, pedestrians, and other obstacles at a place which, but for the presence of the car, the traveler would have the unqualified right to use at the time; but the pedestrian at such a place is not relieved from exercising some care in walking over the crossing, and where, as in this case, there was nothing to divert his attention from a danger of which he had previous warning, he was not justified in relying wholly upon a hurried estimate of the distance of the approaching car in the nighttime, or upon the presumption that it was not moving toward him faster than at its ordinary rapidity, when a mere glance in the direction from which he had already seen it should have satisfied him that he might have been mistaken in such estimate; and therefore the claim that, if the car had been running at an ordinary rate of speed, he would have had time to pass in front of it, does not, in our view, justify his conceded failure to look the second time before stepping upon the rails.
Order affirmed.