34 Minn. 557 | Minn. | 1886
There was evidence sufficient to be submitted to the jury as to negligence on the part of the driver of the car by which the child was run over. It was enough for this purpose that the evidence went to show that the car was driven over the crossing of two of the principal thoroughfares in the city of Minneapolis, at a trot, and at about the ordinary speed with which ears move between street-crossings; that at such speed the car passed the car standing still upon the next track, obviously for the purpose of receiving or discharging passengers, and from which this child and her grandmother were alighting; that the speed was such, or the inattention of the driver such, that the car passing over the child at the crossing did not stop until it had reached the opposite crossing of the street.
The more serious question is as to whether the case conclusively shows contributory negligence on the part of the child’s grandmother, in whose care she was, so that the court was right in refusing to submit it to the jury. The tracks upon which the cars passed were four feet apart. The cars, as one passed the other, were 14 inches apart. The rear platform of the car from which these passengers alighted was a short one, — “quite a little shorter than the width of the car.” The grandmother had been sitting facing the other track, and as she arose to go out she looked through the opposite windows, and saw
Although the case upon the point under consideration is deemed to be not far from the line dividing the proper provinces of court and jury, we are of the opinion that the court was right in treating it as one of obvious contributory negligence. The conditions attending the crossing of an ordinary steam railway are so different from those at a city street-crossing that conduct which may be deemed requisite in the one ease is not necessarily the measure of prudence in the other. Buies of conduct cannot generally be formulated by the strict application of which questions of negligence, such as we are considering, can be determined, since the peculiar and ever-varying circumstances of the case are to be considered in estimating the required measure of common prudence. But without attempting to declare what degree of attention or watchfulness is generally required of one crossing thronged city streets, or horse-car tracks, it is safe to say that since the dangers to which one would be exposed who should attempt such crossing, regardless of his surroundings, are within the common knowledge of men, the law has regard to them, and exacts a reasonable degree of caution to avoid such dangers. It would be negligence for one to unnecessarily place himself in the midst of those dangers without having paid any attention to the presence or the imminence of them. Barker v. Savage, 45 N. Y. 191; Kelly v. Hendrie, 26 Mich. 255.
Order affirmed.