Watson v. Minneapolis Street-Railway Co.

53 Minn. 551 | Minn. | 1893

Gilfillan, C. J.

The witness Walden showed himself competent to state within what distance an electric railway car going at the rate of fourteen miles per hour (at which rate some of the evidence indicated the car which injured plaintiff was going) can be stopped. He had been conductor on such a car two months, must have seen such cars stopped many hundreds of times, when going at as high a rate of speed as they ordinarily attain, and was'at the time conductor on the car which did the injury. It must be presumed that he was an ordinarily observant man, and, if so, he must have been able to express a pretty accurate opinion on the point.

The evidence made a fair case for the jury, both as to the negligence of the defendant and the contributory negligence of the plaintiff; so that the 3d, 4th, and 5th assignments of error are not well taken. And it is the same with the 18th to the 22d, both inclusive, and the 26th and 27th.

Whether, when a jury comes into court, and reports that it cannot agree, it shall thereupon be discharged, or shall be again sent out to deliberate further upon the case, is in the discretion of the trial court; and, before this court could order a new trial because of the jury having been sent out again, clear abuse of discretion, resulting in prejudice to the party complaining, would have to appear. Nothing of the kind appears in this case.

There was no impropriety in the court urging upon the jury to use all reasonable efforts to come to an agreement, and stating, as a reason why they should do so, that the case was an expensive one to try, both to the county and the parties.

The court below, in its general charge, in connection with some requests to charge, given and not excepted to, stated clearly and concisely the rules of law applicable to the respective rights of the parties upon the street, and the duty of each in respect to care in making the crossing, and the matter of negligence or absence of negligence on the part of either or both the parties. The only objection to the general charge, insisted upon in appellant’s brief, is to a part where the court, after stating the degree of care required of each of the parties, said: “If two teams collide in the street, you must determine by the same rules whether they were using reasonable care towards each other, and, if not, who is to blame.” The only suggestion in the brief, of error in this, is that there is a difference between an electric car, running on a fixed track, and a team able to turn to the right or left. That is an important consideration when at the time of the collision the car and other vehicle are passing along the same streets, and the question is which ought to have made way for the other. But the collision in this case was at a crossing, and there is no question which ought to have turned to the right or left to let the other pass. Requiring of those in charge of an electric car at a street crossing the same degree of care as is required of the drivers of other vehicles is not stronger than was laid down in Shea v. St. Paul City Ry. Co., 50 Minn. 395, (52 N. W. Rep. 902,) where it was said: “There is no modification or exception that relieves a street-railway company from exercising at least as much care to avoid collisions with other vehicles as the owners of the latter are required to exercise i i order to avoid collisions with the cars.” So that the degree of care requirecTof a street-railway company at a crossing, by the clause quoted from the charge, to wit, that required of the driver of any other vehicle, was not overstated.

There were numerous requests to charge, some of them very long. Those on the part of the appellant take up over five pages of the paper book. There is a growing tendency — not to be encouraged, we think — on the part of attorneys trying causes, especially those where the fact to be found (such, for instance, as negligence) is to be determined upon the consideration of numerous facts and circumstances proved, to make long requests, instructing the jury what effect they are to give to one or more of such facts and circumstances in arriving at a conclusion on the principal question. It is frequently, perhaps generally, unsafe to give such requests, as it may induce the jury to consider unduly the facts and circumstances specified, and leave out of account others that may be entitled to materially modify their effect. Several of appellant’s requests, which the court refused, were of this character. An illustration of it is afforded by its ninth request, which was, in substance, that if, when plaintiff first came along Eleventh, to cross Washington, he saw the car approaching, and knew it would cross the path along which he was moving, and he drove his team along such path, and did not again look until such interval had elapsed that the car was too near to avoid collision, and if, during such interval, had he looked, he could have avoided the collision, he was guilty of negligence.

This leaves out very important circumstances, which, on the question of his negligence, the jury were to consider: First, the ■distance the car was from him when he saw it; second, at what rate of speed he had a right to suppose it was approaching. Suppose, when he saw it, the car was so far away that if it came at the usual rate of speed he could have easily passed before the car reached the crossing. Certainly, in such case, it would not be negligence per se, as the request assumes, to cross without looking a second time. The fourteenth request has precisely the same fault.

When the court, in its general charge, states fully, correctly, and clearly the general rules that are to control the jury in their deliberations on the facts, whether it will call their attention, and, if so, to •what extent it will call their attention, to particular facts and circumstances tending to establish the principal fact, such as negligence, is in the sound discretion- of the court. It will not be error to decline to do it at all, though, if it do it in such a way as to mislead the jury, it will be error. Of course, where the fact proved is conclusive upon the fact to be found, as proof of an attempt to cross a steam railway without looking or listening, when there is nothing to prevent the party looking or listening, and by doing so he can avoid the danger, is conclusive of his negligence, the court must so instruct the jury.

The appellant’s 11th, 12th, and 13th requests were merely the application, to particular facts and circumstances specified, of the rules which the court had, in its general charge or in requests given, stated to the jury, and it was proper to leave it to them to make .the application.

The giving of plaintiff’s fourth request is assigned as error. That request comes, at least, very near to being obnoxious to the criticism we have made upon several requests on the part of the defendant, and it is necessary to consider if it could have misled the jury. It may be divided into two parts, — the first relating to the question of plaintiff’s negligence; and the second, to that of defendant’s negligence. The first part is the proposition that if, when plaintiff was about to cross, the car was not on that portion of the street over which he attempted to cross, and was not threateningly near or threateningly approaching the same, or if there was nothing to warn the plaintiff of its approach, or of the rate of speed at which it was approaching, he might lawfully drive across said track. The objection to this part of the request is that it ignores the conceded.fact in the case, — that he saw the car as he approached the crossing, from which it is claimed that warning of the car’s approach was unimportant. As he was about to cross he saw the car just coming off of Twelfth avenue, nearly a block away from him, and there was no evidence that he saw it again till he was already on the track, and it was too late'for him to avoid a collision. The request is to be understood, and the jury must have understood it, with reference to that situation. If he had no other notice of its approach than having seen it a block away, and no warning that it was approaching at such a rate of speed that he could not safely attempt to cross, he had a right to do so, unless he was bound, seeing it at that-distance, to stop till it passed. But, as held in the Shea Case, a car on a street railway has not, as, from the necessity of the case, has a train on an ordinary steam railway, a priority of way at the crossing. Of course it would be negligence to attempt it when one had reason to believe that the car cannot be controlled or checked so as to avoid a collision before he gets across. But, with the nncontradicted evidence in the case as to the distance within which the car could be stopped, one seeing it nearly a block away, as he was about to go upon the crossing, would not have any reason to suppose it dangerous. There was no error in that part of the request. After what we have stated above from the request, it continued: “And if, in the exercise of ordinary care, as a prudent person, in so doing, he was injured through the negligence of the defendant in.” Then follows the specification of acts or neglects which the court, in effect, charged would be negligence. The first of these, to which attention is called by appellant’s brief, is: “If said car was running at a high and dangerous rate of speed.” There can be no question that, upon much-traveled streets in a city, that would be negligent. The second is: If the person in charge “was not then on the lookout, and did not then have his car under control; did not use the proper means or necessary means to stop said car, and avoid such collision.” What is thus indicated as the duty of one in charge of such a car is not higher than would be required of an ordinarily prudent person in propelling through the thronged streets of a city so dangerous a vehicle as an electric car. The neglect of that duty would be negligence.

The damages allowed were large, but, in view of the injuries sustained by plaintiff, — severe, lasting, and liable to terminate fatally,— we do not consider them excessive.

Order affirmed.

(Opinion published 55 N. W. Rep. 742.)