Tracey v. City of Minneapolis ( 1932 )

¹ Reported in 241 N.W. 390. Plaintiff appealed from an order denying her motion for a new trial after a verdict was directed for defendant.

For many years a bridge 1,136 feet long has been maintained across the Mississippi river in the city of Minneapolis known as the Tenth avenue bridge. On each side of the 17-foot driveway thereon there is a six-foot sidewalk seven inches high. The inside of this sidewalk forms or constitutes a curb or wheel guard. On the outside of the sidewalk and at the edge of the bridge there are iron railings three and one-half feet high.

Plaintiff's decedent drove an automobile upon the bridge and was in the act of crossing to the opposite side when his car collided with another car traveling in the opposite direction on the bridge. The hub caps on the left front wheels collided. The impact of the two cars caused each of them to be deflected to the left from the usual path of travel. The other car went upon the sidewalk and stopped at the outer railing. Decedent's car climbed the curb, passed on and across the sidewalk, struck the outer railing, which gave way, permitting the car and its occupants to go into the river. Decedent thus came to his death. The floor of the bridge was dry. There is no evidence of skidding.

Plaintiff claims negligent maintenance of the bridge. One of the claims is that the wheel guard or top of the sidewalk was two or more inches too low or, more generally speaking, that it was not high enough. It was also claimed that there was a failure to maintain a suitable railing on the outer edge of the bridge.

1. The case does not involve decayed, rotten, or defective material and could hardly stand upon the claim of negligence in the original construction. Conlon v. City of St. Paul, 70 Minn. 216,72 N.W. 1073. We are concerned with the question of maintenance. It is the duty of municipalities to use ordinary care in the maintenance of highways and to erect guard rails or barriers where their absence would leave the highway unsafe for ordinary travel. They must prepare for and anticipate ordinary use, not extraordinary and unanticipated use. Obviously, this bridge as maintained was adequate for ordinary use, the usual use. It was not so maintained as to prevent an automobile under the circumstances climbing over the curbing and breaking through the railing. To guard against such would have necessitated the construction of a wall of iron or concrete, which would be a very onerous burden to the taxpayers. Few bridges built even under modern methods would withstand such strain. The authorities cannot be expected to anticipate or guard against such emergency. Indeed, it is not the purpose of a curb, curb rail, or an outside rail to protect against such an assault. The purpose is to guard against ordinary contingencies or those which may be reasonably anticipated. The law does not demand a perfect highway under all circumstances. To do so would make the municipality an insurer. This the law does not do. Hubbell v. City of Yonkers, 104 N.Y. 434, 10 N.E. 858,58 A.S.R. 522; Swain v. City of Spokane, 94 Wash. 616, 162 P. 991, L.R.A. 1917D, 754; McClain v. Town of Garden Grove, 83 Iowa, 235,48 N.W. 1031, 12 L.R.A. 482. Accidents of this character are of such remote and improbable occurrence that negligence cannot be founded upon failure to maintain a barrier to adequately resist the applied force. We are of the opinion that the claims of plaintiff cannot constitute negligence on the part of the city.

2. The proximate cause of the accident was not the manner or method of maintaining the bridge, but it was the collision of the two cars. La Londe v. Peake, 82 Minn. 124, 84 N.W. 726; Hansen v. St. Paul Gaslight Co. 82 Minn. 84, 84 N.W. 727; Paquin v. Wisconsin Cent. Ry. Co. 99 Minn. 170, 108 N.W. 882. The case is not controlled by Neidhardt v. City of Minneapolis,112 Minn. 149, 127 N.W. 484, 29 L.R.A.(N.S.) 822.

3. In the trial of the case the court excluded the opinion of engineers, who were called as bridge experts, as to whether this bridge was safe for traffic; whether because of the height of the sidewalk the bridge was safe for traffic; whether because of the character of the outer railing the bridge was safe for traffic; what height should the guard rail on the inside of the sidewalk be; the safety of the bridge as affected by its maintenance; was the bridge in a reasonably safe condition for travel at the time of the accident; and other kindred questions.

It is the rule that the opinions of expert witnesses are admissible whenever the subject of inquiry is such that inexperienced persons are unlikely to prove capable of forming a correct judgment upon it without such assistance. If the expert cannot add anything valuable to that which the jury already have, he should not be heard. But the mere fact that the expert covers the very issue that the jury has to, pass upon does not necessarily call for its exclusion. State v. Cox,172 Minn. 226, 215 N.W. 189. It is the rule however that the testimony of experts should not be received when the facts are such that, when placed before the jury and explained to them, they are as competent as the experts to form an opinion. The questions as to whether a particular, ordinary thing or act constitutes negligence and whether due care required this or that to be done are not matters for expert testimony. Mantel v. C. M. St. P. Ry. Co. 33 Minn. 62, 21 N.W. 853. Expert testimony should be inadmissible where the alleged defect can be fully and adequately described. It has been held that the construction of a railing is not so complicated as to make opinion evidence admissible as to its safety as a matter of right. McDonald v. City of Duluth, 93 Minn. 206,100 N.W. 1102; see also Anderson v. Fielding, 92 Minn. 42, 99 N.W. 357,104 A.S.R. 665; Jones v. Burgess, 124 Minn. 265,144 N.W. 954; Whitehead v. Wisconsin Cent. Ry. Co. 103 Minn. 13,114 N.W. 254, 467.

Where the matter of inquiry relates to the purpose or efficiency of curb guard rails or where the outside rails are involved, as here, the question lies within the common experience of persons of common understanding in the ordinary walk of life, and the opinion of experts may be and should be excluded, as the jury are competent to draw true inferences from the facts proved.

In Comstock v. Georgetown, 137 Mich. 541, 100 N.W. 788, it was held that the court did not err in refusing to allow witnesses to testify that a bridge was reasonably safe.

Moreover, the reception of opinion testimony rests largely in the discretion of the trial court. Madsen v. Latzke, 140 Minn. 325,168 N.W. 11; Hylaman v. Midland Ins. Co. 136 Minn. 132,161 N.W. 385.

4. The court excluded proof of other cars going upon the sidewalk. This is assigned as error under the rule in suits based upon defective streets that it is relevant for a plaintiff to prove other similar accidents for the purpose of showing notice of the dangerous character of the street. Phelps v. City of Mankato, 23 Minn. 276; Burrows v. Village of Lake Crystal, 61 Minn. 357, 63 N.W. 745; Nye Y. Dibley, 88 Minn. 465,93 N.W. 524. However, in the instant case, in view of the conceded notice of the conditions, which as stated above did not constitute negligence, and the fact that the condition of the bridge was not the proximate cause of the accident, it cannot be said that this ruling was erroneous.

Affirmed.