58 Minn. 10 | Minn. | 1894
This is an action for causing the death of plaintiff’s intestate through negligence by a train of cars Crossing-Seventh street, in St. Paul, along which the deceased was walking, and upon the track crossing which street he was when struck and killed.
The jury found a general verdict in favor of plaintiff, and also answered certain specific questions of fact submitted to them by the court.
From the general verdict, we presume a finding in plaintiff’s favor of all facts necessary to sustain it, including the negligence of the defendant and the absence of negligence on the part of the deceased.
Where the special findings are inconsistent with the general verdict, they prevail over it. If they are of facts which show the party in whose favor the general verdict is rendered is not entitled to it, the latter cannot stand. Thus if these special findings established there was no negligence on the part of the defendant, or that there was contributory negligence on the part of the deceased, the general verdict would have to give way. Most of the special findings refer to circumstances bearing on the question of defendant’s negligence, though, except one to the effect that it was negligent, they do not cover the whole question. Several of them have a bearing on the question of contributory negligence, though they do not cover it, unless two of them, as follows:
“(8) Could Aschen, by looking or listening before going upon the track, or so close thereto as to become injured, have seen or heard the approaching train which hit him? Yes.”
“(10) Was Aschen negligent? No.”
It is argued that the last of these is only a conclusion of iaw, and that would be so if the specific facts on which it is based were such as to make Aschen’s attempt to.cross under the circumstances •negligence per se. The other findings do not show that, and the question is, does the first above or eighth finding show it? We ■think it comes short of it, inasmuch as it states merely that he could do one or the other of two things, — see or hear the train,— •but does not state which. We have in the findings none of the surrounding circumstances, and we cannot therefore say that it was negligence per se for him to go upon the track, even though he heard the train, for the surroundings may have been such that he could not tell by hearing alone in which direction it was moving, nor that it was so near as to malee the attempt to cross dangerous; so that, notwithstanding the fact that he could see or
Judgment reversed, and the case will be remanded, with directions to the court below to hear a motion for a new trial, should defendant desire to make one.
(Opinion published 59 N. W. 632.)
