McKillop v. Duluth Street Railway Co. ( 1894 )

Canty, J.

Plaintiff was a teamster, and, at the time of the injury, was driving his team from West Duluth back to Duluth. He claims that his team took fright, threw him out of his sled, and, in falling, he struck on his head, and was injured so that he became dizzy and dazed, and, after wandering along in this condition, fell down on the street-car track of defendant, and its car ran over him, and cut off his leg. This occurred after dark in the evening. He claims that defendant was negligent—

First, in constructing and maintaining its tracks several inches above the surface of the street, thereby causing an obstruction which threw him out of his sled when the horses ran away;

Second, in failing to keep, at the front of its ear, a light of sufficient power to enable the motorman to see an object far enough ahead of the car to enable him to stop the car before the object was reached;

Third, that the motorman was negligent in failing to discover him upon the track in time to prevent the injury by stopping the car.

The defendant claims that the injury was caused by plaintiff’s own negligence; that plaintiff was intoxicated to such a degree that he was not able to drive his team, but fell out of the sled, and permitted the team to go off; and that, after staggering along the track, and falling and lying down several times, finally lay down in a state of helpless intoxication, where he was found at the time he was run over by the car.

On the trial the jury returned a verdict for plaintiff, and, from an order denying a motion for a new trial, defendant appeals.

The only ground of error urged is that the verdict is not justified by the evidence; not that there is not sufficient evidence to sustain the verdict, if it was credible, but that the evidence to support the verdict is so contradictory and improbable as to be unworthy of belief.

We are of the opinion that there is sufficient evidence to sustain the verdict, and that the contradictions in the evidence and the credibility of the witnesses are questions for the jury. This being the only question raised by appellant, the order appealed from should be affirmed. So ordered.

Buck, J., absent, sick, took no part.

(Opinion published 59 N. W. 481.)