68 Minn. 138 | Minn. | 1897
Action to recover damages for the death of the plaintiff’s husband and intestate, John Shannon, by the alleged negligence of the defendants. Verdict for the plaintiff for $2,000, and the defendants appeal from an order denying their motion for a new trial. The defendants here claim, (a) that the verdict is not justified by the evidence, in that it does not show that the negligence of the defendants, conceding that they were negligent, was the proximate cause of the death of Shannon, but that it does conclusively show that he was guilty of contributory negligence; (b) that the trial court erred in refusing to give certain of their requests for instructions to the jury.
1. The questions whether the negligence of the defendants was the proximate cause of Shannon’s death, and whether he was guilty of contributory negligence, are so closely connected that they may be considered together. The evidence was practically undisputed, and tended to establish the facts following:
Union alley, in the city of Stillwater, while it was never formally laid out as a public street or alley, had been traveled and used as such for many years prior to Shannon’s death, and must, for the purposes of this case, be regarded as a public alley. It is 16 feet wide, and
This was the condition of the ditch, ridge, and alley on the night that Shannon came to his death, October 24,1S95; and the defendants so left them unguarded by any fence or other barrier, and unlighted. There were no street lights in the alley, and it was so dark therein that the ditch could not be seen by a person passing it. Shannon was last seen alive between 10 and 11 o’clock of the night in question, and, as he separated from the person with whom he was then conversing, he said “he would take a short cut and go home,” and then walked in the direction of this alley. He was found dead in the ditch about midnight. His feet rested on the bank of the ditch towards the alley, his hips were in the ditch, and his head was wedged under the sill of the barn, and thrown forward so that his chin rested upon his chest. He was facing the alley at a right angle, with his arms by his side. His hat was lying in the ditch near his left side. He was cold when found. His face and neck were congested and black. There was no appearance of a struggle, no marks of violence upon him, and there was nothing to indicate that he came to his death by foul play. The evidence warrants the conclusion that his death was due to suffocation caused by his head being forced and held against his chest by the sill of the barn. The evidence also justifies the finding of the jury that the defendants were guilty of negligence in leaving the ditch unguarded and unlighted.
These propositions are not here seriously controverted by the defendants. Their claim is that the position of Shannon’s body in the
Speculate as we may as to how he got into the ditch, the fact remains that he did get there, but not by his own voluntary act, or by the wrongful act of another. There is no evidence in the case to suggest suicide or murder. His death resulted by his getting into the ditch, and the reason or cause why he was there may well have been, and probably was, the defendants’ negligence in leaving the ditch unguarded. If it had been fenced, the probabilities are that he would not have fallen or slid into it. In any event, the evidence was such as to make it a question for the jury whether leaving the ditch unguarded and unlighted was the proximate cause of Shannon’s death. The plaintiff was not bound to establish such cause by direct evidence. It was sufficient to do so by circumstantial evidence, the only possible evidence on this point that could be given in this case. Neither was the plaintiff bound to negative contributory negligence on the part of her intestate in using the alley.
This brings us to the question of such negligence on his part. There was evidence in the case tending to show that Shannon, for several years, was addicted to the drink habit, and occasionally would get drunk; that for a year before his death he did not drink, until the day of the accident, when he drank three or four times during the after
2. The defendants also assign as error the refusal of the trial court to give their fourth, fifth, and sixth requests for instructions. Each of these requests contained several distinct propositions, some of which did not state the law correctly. There was a general exception to the refusal to give each request. The exception was too general to present any question for review on this appeal. But, this aside, the trial court in its general charge gave distinctly and emphatically so much of the requests as the defendants were entitled to have given.
Order affirmed.
If the verdict in this case could he sustained only on the hypothesis that, when the deceased was passing along the alley,