275 F. 928 | 8th Cir. | 1921
The plaintiff in the District Court, Mr. O. K. Earle, sued the Yellow Cab Company, a coiporation, for $18,675 damages, which he alleged were caused by the negligence of the defendant, in causing one of its cabs to be driven against and upon him at an unlawful speed as he was crossing one of the streets of the city of Minneapolis. The defendant admitted that there was a collision between the plaintiff, and one of its cabs at the time and place specified, but denied that the accident or injury was the effect of its negligence, and alleged that, if the plaintiff was injured thereby, his own negligence contributed to cause that injury. The case was tried by a jury, and resulted in a verdict and judgment for the plaintiff for $9,700.
The defendant seeks a reversal of this judgment for five alleged errors during the trial, which it has assigned. The first is that the court instructed the jury that the laws of Minnesota did not permit a person to operate a motor vehicle, where the accident happened in the city of Minneapolis, at a greater speed than 10 miles per hour, and that the operation of such a vehicle at such greater speed at that place was prima facie evidence of the negligence of the operator. But the proof was that the place of this accident was in a closely built up portion of the city of Minneapolis. Section 2635 of the General Statutes oí Minnesota of 1913, as amended, Supplement, page 268, declared that no person should drive a motor vehicle upon any highway of that state at a speed greater than is reasonable and proper, and that—
“If the rate of speed of any motor vehicle, operated on any public highway in this slate, where the same passes through the closely built up portions of any incorporated city, town or village, or where the traffic is more or less congested, exceeds ten miles an hour for a distance of one-tenth of a mile, or if the rate of speed of any motor vehicle, operated on any public highway of this state, where the same passes through the residence portions of any city, town or village, exceeds fifteen miles an hour for a distance of one-tentli of a mile, * * * such rates of speed shall be prima facie evidence that the person, operating such a motor vehicle is running at a rate of speed greater than is reasonable and proper.”
The place of the accident was in a closely built up portion of the city of Minneapolis. The court read this statute into- its charge, and then said to the jury:
“.Now, that is the law of this state with reference to speed. You will see that it is unlawful and prima facie evidence of negligence for the operator of a motor vehicle, the driver of a taxicab, to run tliat taxicab in the closely built up portions of a city like this at a speed greater than ten miles an hour for a distance of one-tenth of a mile”
[ 1 ] The second, third, and fourth, specifications are that the court erred in denying the motion of the defendant to set aside the verdict and grant a new trial (a) on the ground that it was not justified by the evidence; (b) on the ground that it was contrary to law; and (c) on the ground that the damages were excessive and appeared to have been given under the influence of passion and prejudice. But as the denial of a motion to set aside a verdict and grant a new trial on either of these grounds is discretionary with the trial court, and not reviewable on a writ of error in a federal appellate court, these specifications are futile. Chicago, M. & St. P. Ry. v. Heil, 154 Fed. 626, 629, 83 C. C. A. 400.
Counsel for the defendant below, the plaintiff in error here, made a motion to strike the brief of the defendant below from the record for a lack of compliance therein with rules 24 and 26 of this court.
Let the judgment below be affirmed.
188 Fed. xvii, xvii, 109 C. C. A. xvi, xvii.
