64 Minn. 466 | Minn. | 1896
This action grew out of a collision on Selby avenue, in St. Paul, between plaintiff, who was driving a horse, attached to a wagon, in an easterly direction, and a grip car running westerly on defendant’s cable line. The negligence attributed to defendant, according to the complaint, was in maintaining, at the point in question, a cable slit of an unusual and dangerous width and construction, in which plaintiff’s horse caught his foot, and, while so caught, the employé in charge of the grip car ran into him, causing the injuries complained of. By the answer it was alleged that the injuries were caused solely because the horse suddenly and unexpectedly turned from his course, and jumped directly in front of the grip car as it was being propelled along the rails in the usual and ordinary manner. It was also alleged that the slit was not unusually or dangerously wide, or of unusual or dangerous construction, and, further, that the horse was not caught in the slit. At the trial two special questions were submitted to the jury, — the first, was the horse caught in the cable slit? the second, did the horse suddenly and unexpectedly turn from his course, and jump in front of the car? Both of these .questions were answered in the negative, and then the jury returned
By reason of the negative answer to the first of these questions, one very important feature has been eliminated from the plaintiff’s case. The defendant has thereby been relieved of the consequences of a charge that the cable slit was unusually and d’angerously wide, and when examining the evidence for the purpose of passing upon the contention of defendant’s counsel that, from plaintiff’s own testimony, it appeared that defendant’s employés were not negligent in any degree, and also that it was conclusively established that plaintiff was guilty of contributory negligence, this court is relieved from a consideration of testimony tending to show that the horse, did catch one of his front hoofs in the slit, and was unable to move.
Thus stripped, the evidence, construed most favorably for plaintiff, was as follows: He was well acquainted in the locality; knew about the movements of the cable cars, and the method of handling. He knew at what rate of speed the cars usually ran, — about 12 miles an hour, — and supposed the car which struck his horse was running at about that rate. He knew that sometimes the calks upon horses’ shoes would catch in the slit, and “made it a point to walk across the cable track. • I had been caught two or three times.” While driving east, in broad daylight, on the north side of the track, at a sharp trot, —about eight miles an hour, — he saw the car approaching, when it was some distance away; and then he turned his horse to cross diagonally to the south side of the track, slackening the speed of his horse as he turned. When asked to state the distance from the car to himself when he started to cross, his answer was, “Well, I couldn’t tell, any more than what I had always considered a safe distance.” Upon being pressed for a further estimate of the distance, he replied, “Well, I should put it about seventy-five to one hundred feet.” The plaintiff also gave it as his opinion that when the horse first reached the rails the car was from 50 to 60 feet away, and, further, that about two seconds of time would have then been required for crossing and clearing the path of the approaching car.
So that, according to his version of the occurrence, plaintiff undertook to effect a crossing which would consume two seconds, if he moved along without delay, while the car — running upon a fixed track, and unable to deviate therefrom — passed over ground which it
Order reversed, and a new trial granted.