Muirhead v. Bruns ( 1925 )

Owen, J.

We discover no evidence in the record to successfully contradict the testimony of Mr. Jacobson set forth in the statement of facts. In fact, he is the only witness testifying who pretended to see how the accident occurred. The testimony offered by the defendant throws little light upon the question, and even though there was evidence to dispute it. the jury had a right to find that the accident happened in the manner described by this witness. If the accident did so happen, we do not see how the plaintiff can be held guilty of contributory negligence, or why a verdict finding the defendant guilty of a want of ordinary care in the respects mentioned can be set aside as being unsupported by the evidence.

Certainly pedestrians on the street are not called upon to anticipate any such contingency as that encountered by the plaintiff. According to the testimony the cable was' lying slack in the street and did not extend across the sidewalk until, upon its being drawn taut, it was pulled up over the curbing with great force and suddenness. We think the jury was abundantly justified in finding that the defendant was negligent in not warning pedestrians of this lurking danger, and that the finding absolving the plaintiff from contributory negligence was well within their province. Judgment should have been rendered in favor of the plaintiff upon the special verdict.

The trial court, stated that in his opinion the damages were excessive, and respondent’s counsel so contends. We are not so impressed. Without reviewing the evidence we will say that in our judgment the amount of damages awarded finds ample support in the evidence.

By the Court. — Judgment reversed, and cause remanded with instructions to render judgment in favor of the plaintiff upon the special verdict.