Peterson v. Minneapolis Street Railway Co.

53 N.W.2d 817, 236 Minn. 528, 1952 Minn. LEXIS 687

Opinions

Magney, Justice.

This is an appeal from an order denying plaintiff’s motion for a new trial after verdict for defendant in an action to recover damages for personal injuries.

Plaintiff, Jens C. Peterson, suffered serious injury in a collision with one of defendant’s streetcars about 10:30 p. m., February 12, 1948, at the west end of a viaduct which carries Glenwood avenue over the tracks of the Great Northern Railway Company and the Minneapolis & St. Louis Railroad Company in the city of Minneapolis. Plaintiff was an employe of the M. & St. L. and, at the time of the injury, was engaged in replacing the bulb in a red warning-light fixture at the west end of a girder which extends through the middle of the viaduct, dividing the eastbound and westbound lanes of motor and streetcar traffic over the viaduct. Plaintiff struck the left side of an eastbound streetcar as it passed close to the south side of the girder. Marks on the streetcar indicate that the point of contact was about 12 feet from the front of the car.

The viaduct is 205 feet long. The girder, which is 53 inches high, runs the entire length of the viaduct and rests upon a concrete base about 5 inches above the street level. The girder is 12y2 inches wide at the top and, including the concrete base, 23y2 inches wide at the bottom. At the west end of the girder there is a vertical board painted with black-and-white stripes. The fixture for the red warning light is above this board. The center of the lamp is 9y2 inches above the girder, 63 inches from the pavement.

The near rail of the eastbound streetcar track is 35 inches from the girder. The side of the streetcar projected 24 inches beyond the rail toward the girder. Thus, there was a clearance of 11 inches between the girder and the passing streetcar.

A pendant arc light hangs 39 feet 6 inches west of the west end of the viaduct above the trolley wires, a little nearer the eastbound trolley rail than the westbound one. The motorman of defendant’s streetcar testified that as he approached the arc light from the west, up a slight incline to the viaduct, at 10 to 15 miles per hour, he could not see beyond the light, though he was looking ahead. He continued to look ahead after he passed the light, but did not see plaintiff until he was six feet from him. He was startled when he saw plaintiff and applied the emergency brakes. When he saw that plaintiff was clearing the front of the car by several inches, he released the brakes and coasted. He was unaware of the collision until he was informed by a passenger that plaintiff was lying on the tracks behind the car.

Plaintiff testified that he arrived at the viaduct five or ten minutes before the accident. He had removed a red-globed kerosene lamp which had been wired in front of the regular light and had placed it on the girder behind the light fixture slightly to the right. He was standing with his right side against the girder, facing north, moving a flashlight back and forth in his left hand, while with his right hand he was unbolting the hinged lens of the light fixture. He was Wearing a gray cap and gray knee-length coat. He was not moving around. The motorman did not see the flashlight, nor did any of his passengers. The motorman testified that when he first saw plaintiff the latter was facing the girder, with his back toward approaching eastbound traffic.

Plaintiff assigns as error the refusal of the trial court to instruct the jury upon the issue of defendant’s wilful and wanton negligence. The contention is not supported by the evidence. If defendant’s motorman did not operate the streetcar with ordinary care after discovery of plaintiff’s position of peril, the motorman was guilty of wilful and wanton negligence, and plaintiff’s contributory negligence, if any, would not bar his recovery. Alger, Smith & Co. v. Duluth-Superior Traction Co. 93 Minn. 314, 101 N. W. 298. The evidence in the case at bar would not support a jury finding that the motorman discovered plaintiff’s perilous position in time to stop the car or give an effective warning of the approach of the car. The only evidence upon the subject is the testimony of the motorman that he did not see plaintiff until he was 6 feet from plaintiff. No inference that the car could have been stopped or an effective warning given can be indulged. No issue of wilful and wanton negligence is presented by the evidence.

Plaintiff requested an instruction that the defendant was negligent as a matter of law, and refusal to give the instruction is assigned as error.

The duty of the operator of a streetcar has been stated in Wright v. Minneapolis St. Ry. Co. 222 Minn. 105, 112, 23 N. W. (2d) 347, 353:

“The duty of a motorman in operating and managing a streetcar is to exercise ordinary or reasonable care to avoid harm to others. Ordinary or reasonable care is care commensurate with the circumstances. A motorman must keep a reasonable lookout ahead so as to be able to take proper precautions to avoid accidents.”

And, as stated at 222 Minn. 113, 23 N. W. (2d) 354:

“* * * A motorman is bound to maintain a lookout for people where he ought to know they are likely to he.” (Italics supplied.)

The care and prudence employed must be reasonable in the circumstances, but the operator of the streetcar may assume that workmen on the streets will not increase danger by failure to exercise ordinary care in lookout for streetcars, or by failure to get out of the way in time to avoid danger. 2 Nellis, Street Railways (2 ed.) § .407.

Plaintiff contends that reasonable men could not find that the motorman was exercising ordinary care in maintaining a lookout in front of the streetcar; that the only possible inference is that the motorman was not maintaining a lookout or plaintiff would have been discovered; but that, even if the testimony of the motorman that he was looking is given credence, he must have been negligent in proceeding blindly into an area where he could not see plaintiff in time to stop or in time to warn him of the streetcar’s approach. In other words, it is argued that the motorman, in the exercise of ordinary care in the circumstances, would have seen plaintiff standing near the tracks, 40 feet from an arc light of unknown illuminating power, without warning lights visible to approaching traffic, in gray clothing, at a point which is not a crosswalk, and where the evidence does not disclose that pedestrians or workmen usually stand or work.

The weakness of this contention is that it would set a standard of reasonableness of lookout without regard to the circumstances disclosed by the evidence. The law does not require the motorman to see all or to take every possible precaution in lookout; his precaution is to be measured by that which appears likely in the usual course. Schmidt v. Steinway & H. P. Ry. Co. 132 N. Y. 566, 30 N. E. 389. “The risk reasonably to be perceived defines the duty to be obeyed.” Nees v. Minneapolis St. Ry. Co. 218 Minn. 532, 538, 16 N. W. (2d) 758, 762. Where the pedestrian public makes but a limited use of the street, the public interest is subordinated to the necessities of street railway operation to some extent, and the street railway may properly operate its cars at greater speed and with a lesser degree of care. Wosika v. St. Paul City Ry. Co. 80 Minn. 364, 83 N. W. 386; see, Strutzel v. St. Paul City Ry. Co. 47 Minn. 543, 545, 50 N. W. 690, 691.

In Wright v. Minneapolis St. Ry. Co. 222 Minn. 105, 23 N. W. (2d) 347, cited by plaintiff, the motorman stopped his car so the front projected into a crosswalk. If the motorman had stopped before the crosswalk, he could have seen the crosswalk and could have seen plaintiff from the usual driving position. The streetcar was started without warning and struck a small boy immediately in front of the car and beyond the motorman’s vision. This court recognized that the circumstances of the case defined the duty of lookout imposed on the motorman, and said (222 Minn. 118, 23 N. W. [2d] 356):

“* * * Because the motorman knew that he was blocking the crosswalk, he should have anticipated that pedestrians crossing the street might pass along the side' of the streetcar and in front of it to get across. Under those circumstances, he should have made such observation as was necessary to ascertain whether any pedestrians were passing or were about to pass in front of the streetcar and taken such precautions as were necessary to avoid injuring them. * * * If he had stopped where he should have, he could have made such an observation. Because stopping where he had no right to do so disabled the motorman under the circumstances from making a proper observation to his left while operating the car in a sitting position, it became incumbent on him to take such measures as would enable him to observe that it was safe to start before proceeding forward with the streetcar, or to give a timely and adequate warning that he intended to do so.”

Thus, it appears that the Wright case does not hold the motorman to a duty to see all, but to see what in the circumstances ordinary care requires him to see.

It is true that failure to see a pedestrian upon the street is usually evidence of negligence, requiring the issue to be submitted to the jury. Thus, in Anderson v. Minneapolis St. Ry. Co. 42 Minn. 490, 44 N. W. 518, 18 A. S. R. 525, it was held error to direct a verdict for defendant where a child ran into the street while the operator of the streetcar had his head turned to make change for a passenger and a collision followed. This court held that it was for the jury to say whether the driver would have seen the child in time to stop the car if he had been exercising due care and caution. Cf. Weissner v. St. Paul City Ry. Co. 47 Minn. 468, 50 N. W. 606; McCabe v. Duluth St. Ry. Co. 175 Minn. 22, 220 N. W. 162; Rogers v. Minneapolis St. Ry. Co. 218 Minn. 454, 16 N. W. (2d) 516; Warren v. Mendenhall, 77 Minn. 145, 79 N. W. 661; Schuman v. Minneapolis St. Ry. Co. 209 Minn. 334, 296 N. W. 174. The duty of lookout of a streetcar motorman should not be greater than that of the operator of an automobile under circumstances where we have held that the operator is not negligent as a matter of law in not seeing a pedestrian dressed in dark clothes, on a dark night, though in the city, and near a street light. Becklund v. Daniels, 230 Minn. 442, 42 N. W. (2d) 8.

Heiden v. Minneapolis St. Ry. Co. 154 Minn. 102, 191 N. W. 254, held that a motorman must operate his car at a speed and with such lookout that when vehicles on the track ahead can be discerned he can stop in time to avoid collision. In that case, a streetcar collided with a wagon ahead of it on the street. Such a vehicle, under the circumstances, was certainly reasonably to be anticipated upon the highway, and ordinary care required that the speed of the streetcar be limited and a lookout maintained, which would have disclosed the presence of the wagon.

Ir the case at bar, it cannot be said that the operator of the streetcar was negligent as a matter of law in failing to see plaintiff in time to stop or warn him. The arc light over the street prevented vision until the streetcar passed it, 40 feet from plaintiff. But there was still time to stop or warn, and any negligence in the approach to that point would not be a proximate cause of plaintiff’s injury. After the car passed under the light, the motorman, though he was looking, did not see plaintiff standing in front of the girder. There were no visible warning lights at the end of the girder. The jury could find that plaintiff’s flashlight, if used, was inadequate or improperly used, and that the operator of the streetcar could not see its beams. Plaintiff was not standing on the track, but to the side of the track, up against the girder. He was not moving about. His clothes were dark. Though the motorman had passed over the bridge before, there is nothing to indicate that he was aware or should have been aware that persons were likely to work on the bridge at night, or that the bridge was used as a pedestrian crossing, although, of course, pedestrians had a right to cross, and plaintiff properly and.lawfully could work there at night. The motorman might properly assume that if a workman was present he would at least have a light which could be seen and which would warn him of the workman’s presence. A lesser lookout than that required to see plaintiff would have disclosed a movmg pedestrian, since plaintiff was standing against the girder and not moving about. It may be conceded that plaintiff would have been visible if particular care had been used in attempting to see him. But it must be remembered that the expert who testified that a person standing in front of the girder could be seen was looking specifically at that point, for a particular reason. He did not have a duty also to look ahead of the car for other vehicles and pedestrians, to the side for passing vehicles, and to some extent at the passengers in the car.

The fact that there was little clearance between the streetcar and the girder and that the warning light was not burning did not call for special care by the motorman. A motorman may be called upon to exercise closer lookout in tight places where he is unfamiliar with the tight place. In this case he had passed the point frequently. There was ample clearance for his car. The tight place was not dangerous in the ordinary course of events. Unless he was bound to anticipate that the lack of clearance was dangerous in this case because of plaintiff’s presence, there was no occasion for a greater amount of care as to lookout. The fact that the warning light on the girder was not burning was not necessarily the occasion for anticipating that plaintiff would be present. The red light was a warning to motor vehicles which might not see the girder. It was not a warning to.streetcars, which run on fixed tracks and would in no event strike the girder unless derailed. There was no reason for the operator to pay special attention to the red light, or be concerned if it was not burning, or to anticipate that there would be danger because it was out. Cf. Kilgallen v. Philadelphia Rapid Transit Co. 300 Pa. 451, 150 A. 746.

It was a question for the jury whether the motorman, unaware of the necessity for a special lookout at this point, necessarily engaged also in watching other points for other hazards, should have seen plaintiff standing motionless and without warning lights alongside the track. It was no error to submit the issue to the jury.

It was likewise for the jury to decide whether the conduct of plaintiff was negligent, and, if so, whether his negligence was a proximate cause of his injury. Plaintiff testified that as he worked upon the light he used his right hand to operate the wrench with which he was unscrewing the nut and extended his left arm with the flashlight in the direction of approaching traffic. The motorman testified that he did not see the light. The jury could find that plaintiff, with his attention directed predominantly to his work and not to the flashlight, did not give an adequate warning. Moreover, as he worked, he stood perilously close to the streetcar tracks, yet did not see the streetcar approach. The jury could find that he was negligent as to lookout. The jury could find that he moved into the side of the streetcar beyond the point where the streetcar begins to narrow toward the front, and that this movement was careless. The evidence would support a finding that he was negligent.

Refusal to instruct the jury that “A motorman is guilty of negligence if he proceeds blindly,” was not error. The duty of the motorman to maintain a lookout was adequately covered in the instructions given, and refusal to give a particularized instruction is not error. 6 Dunnell, Dig. & Supp. §§ 9777, 9778. Similarly, the requested instruction that the motorman was under a duty to keep the car under control so that he could stop in time to avoid a collision, insofar as it was applicable to the facts in evidence, was sufficiently covered in the general instruction given to the jury.

M. S. A. 169.14, subds. 1 and 3, deal with the requirement of reduced speed to avoid collision. It does not appear that the speed of the car was excessive; in any event, excessive speed could not have been a proximate cause of plaintiff’s injuries. Since speed was not an issue in the case, it was not error to refuse to instruct the jury as requested. Heiden v. Minneapolis St. Ry. Co. 154 Minn. 102, 191 N. W. 254.

The trial court refused to instruct that “An act done in normal response to the stimulus of the situation created by the actor’s negligence is a substantial factor in bringing about the injury and not an independent intervening cause.” This language, taken from Smith v. Carlson, 209 Minn. 268, 272, 296 N. W. 132, 134, merely states that an act done in an emergency, created by another, is a cause, whether the act is negligent or not. It does not state the so-called emergency rule, as plaintiff apparently intended. The requested instruction is not applicable to, nor would it clarify, any issue in this case, and was properly refused.

The record discloses no reversible error. The order of the trial court must therefore be affirmed.

Order affirmed.