Kloss v. Minneapolis Street Railway Co.

Dibell, J. Two cases were tried together, one in which Georgette Kloss was the plaintiff and the other in which Harry Kloss, her husband, was the plaintiff, both against the Minneapolis Street Railway Company and the American Railway Express Company, one to recover for personal injuries sustained by the wife, the other for damages to the plaintiff Harry Kloss through the loss of services of his wife. There was a verdict for $7,500 in favor of Georgette Kloss and one for $982.96 in favor of her husband against the defendant express company. There was a verdict for the defendant street railway company. Defendant express company moved in each case for judgment notwithstanding the verdict or for a new trial, and the appeal is from the orders denying the motions. The accident occurred on December 11, 1925, at three o’clock in the afternoon on Sixth street between Third and Fourth avenues south in Minneapolis. The plaintiff Georgette Kloss was a passenger on one of the railway company’s cars. The car was going westerly along Sixth street. It had made a stop to take on passengers at Fourth avenue and was moving toward Third avenue. A wagon of the express company was in the middle of the block between Third and Fourth avenues on the track southerly and parallel to the one on which the car was moving. The street car and the wagon collided and the plaintiff was injured. The collision came when the driver of the express wagon turned across the street in the middle of the block. The complaint alleged negligence of both defendants. It unnecessarily alleged that the driver of the street car saw the express wagon and could have stopped in time to avoid harm. The street railway company admitted that the express company was negligent, and the express company admitted that the street railway company was negligent. Each denied its own negligence. *296 The case made by the pleadings is one of concurrent negligence of the defendants. As found by the jury there was negligence of the express company but not of the street railway company. The claim of the express company is that the pleading did not permit a recovery of the express company, since under the specific allegation stated the negligence of the street car company was the proximate cause of the injury. Counsel for the defendant made his claim at the beginning of the trial and has not’wTaived it. The allegation that the motorman could have stopped his car and avoided the collision does not prevent a recovery against the express company. The theory of the complaint was that the negligence of each was a proximate cause. If so, there might be a recovery against both. The jury found that the express company was negligent and that the street railway company was not. This it might do. The jury might have found that the express company was violating an ordinance when it turned in front of the street car, and so was liable, or that it was negligent aside from that. The general rules applicable to concurrent negligence and proximate and intervening cause are stated in Fairchild v. Fleming, 125 Minn. 481, 147 N. W. 434; Palyo v. N. P. Ry. Co. 144 Minn. 398, 175 N. W. 687; Moody v. C. N. Ry. Co. 156 Minn. 211, 194 N. W. 639; Holmberg v. Villaume, 158 Minn. 442, 197 N. W. 849; 4 Dunnell, Minn. Dig. (2 ed.) §§ 6999-7007. The evidence permitted a finding that the express company’s negligence was the proximate cause of the collision. It is claimed that the damages were excessive. Mrs. Kloss was 30 years of age. She suffered a miscarriage. An operation was necessary. Another operation may be advisable. There is evidence that she may be sterile. She is neurasthenic and anaemic. Some of her injuries may be permanent. Defendants did not call their physicians who had examined her. Her physicians described her injuries in detail. We cannot say that the damages are excessive. Orders affirmed.