Mullane v. St. Paul City Railway Co.

104 Minn. 153 | Minn. | 1908

ELLIOTT, J.

(after stating the facts as above).

The jury found, in answer to a special-interrogatory, that McDonald was not guilty of contributory negligence, and this finding is under the evidence final, unless the violation by McDonald of an ordinance of the city of St. Paul forbidding the driving of a team faster than a walk over any bridge in the city of St. Paul was negligence per se and contributed to the accident. This ordinance was passed in 1884, and it is at least doubtful whether it is reasonable, when applied to a bridge such as that upon which this accident occurred. However that may be, and assuming that McDonald was violating the ordinance when he drove around the car in the attempt to pass it, we have only the fact established that he was negligent in that particular respect. This alone would not prevent recovery, as it must further appear that the particular act of negligence contributed to the causing of the accident. It appears that his team had stopped and was standing still when it was struck by the approaching car. It was, under the circumstances, a fair question for the jury, assuming that he had been guilty of a negligent act, whether it contributed to causing his injury; and that question the jury answered adversely to the claim of the appellant. No instructions were asked or given with reference to the effect of the violation of the ordinance. The questions of negligence and contributory negligence were submitted to the jury with the ordinary instructions, and the evidence sustains the jury’s conclusion.-

As the plaintiff was not negligent, the question of the wilful negligence of the defendant passed out of the case. The instruction with reference to wilful negligence was based on the assumption that the jury should first find that the plaintiff was guilty of contributory negligence; and, it having been determined that he was free from fault* the instruction was no longer applicable, and any error contained therein was innocuous.

The appeal, then, rests upon the simple question whether there was any evidence reasonably tending to show that the motorman of the approaching car failed to exercise reasonable care in keeping a lookout, and, if -so, whether such failure was the cause of the accident. The defendant offered no evidence upon this issue, and, the verdict having been approved by the trial court, the plaintiff is entitled to have his evidence considered in the most favorable light.

The undisputed evidence made an issue for the jury, and the orders of the trial court are therefore affirmed.