1 Reported in 201 N.W. 606. A street car operated by defendant collided with a truck driven by plaintiff at the intersection of East Hennepin avenue and East Island avenue in Minneapolis. East Hennepin runs east and west; East Island intersects, approaching from the north. It does not cross. Plaintiff traveled southerly onto East Hennepin and the street car was going west. Plaintiff sustained injuries for which he was given a verdict for $12,000. Defendant has appealed from an order denying its alternative motion for judgment *Page 323 notwithstanding the verdict or for a new trial. Defendant's appeal presents three questions, namely: Defendant's negligence, contributory negligence, and excessive damages. We will consider the first two questions together.
That a street car is a "vehicle" within the meaning of section 22, chapter 119, p. 164, L. 1917, is settled. Syck v. Duluth Street Ry. Co. 146 Minn. 118, 177 N.W. 944. But in the absence of such holding the street car would not have the right of way. Shea v. St. Paul City Ry. Co. 50 Minn. 395, 52 N.W. 902.
There is evidence to justify the jury in finding that plaintiff's view to his left was obstructed by a large sign on the corner lot but some distance from the corner; that on his right was a hotel built up to the sidewalk line on the corner; that the truck was going from 8 to 12 miles per hour, and going along at a set speed for 75 feet from the point of impact; that the street car was going 18 to 25 miles per hour; plaintiff had his truck under control and could have stopped in 10 feet; that plaintiff was familiar with the intersection; that the street car usually slowed down for the intersection, which plaintiff knew; that it did not slow down for plaintiff; that the street car was about 70 feet east of the east side of East Island avenue when the motorman saw the truck; that plaintiff saw the street car when he was about 60 feet from the point of intersection and when the street car was about 150 feet therefrom; that plaintiff intended to make a left hand turn on to East Hennepin; that he stayed to the right of the center; that the traffic was heavy; that plaintiff saw nothing unusual in the movements or speed of the street car, and it was then presumably going at the usual speed of about 15 miles per hour; that the rear wheels of the truck were on the south rail when the collision occurred and the truck by its own momentum and the blow landed on the sidewalk on the southerly side of East Hennepin facing northwesterly. Plaintiff was thrown to the pavement and injured.
Plaintiff had the right of way. True, the law of the road is not unyielding. It does not invariably give the vehicle to the right of the intersection the preference, but, when all things are substantially equal for both parties, the one on the right has the preference. *Page 324 He may have the preference when all things are not substantially equal. The right of way does not permit a person to use the street arbitrarily or irrespective of other conditions present. It is a rule of convenience for the purpose of standardizing rights and duties at street intersections. "It does not absolve one having the prior right from independent acts of negligence at such crossings." Rosenau v. Peterson, 147 Minn. 95, 179 N.W. 647; Carson v. Turrish, 140 Minn. 445, 168 N.W. 349, L.R.A. 1918F, 154; Gibbs v. Almstrom, 145 Minn. 35, 176 N.W. 173; Anderson v. A.E. Jenny Motor Co. 150 Minn. 358, 185 N.W. 378. In this case when plaintiff saw the car it was 2 1/2 times as far from the point of intersection as was the plaintiff. This gave plaintiff the benefit of the preference and defendant's failure to slacken its speed in recognition of plaintiff having the right of way was sufficient to justify the jury in concluding that defendant was negligent. Under the circumstances the defendant owed plaintiff the duty of yielding to him the right of way. Its violation of this duty was negligence.
Was the plaintiff as a matter of law guilty of contributory negligence? The parties were in a congested district. Traffic was heavy. Plaintiff was required to give vigilant attention to his right for approaching vehicles. This required his attention until he was within 30 feet of the first rail. When he saw the street car he might well assume that defendant would follow its usual practice of slowing down for the intersection, which it did not, and also that defendant would under the circumstances yield to him the right of way. He could assume that defendant would observe its duty toward him up to the time when it appeared that it would not. The law did not require plaintiff to presume that defendant would be guilty of negligence. Carson v. Turrish,140 Minn. 445, 168 N.W. 349, L.R.A. 1915F, 154. There was also a pedestrian in the street. Circumstances demanded some mental activity. The truck was moving toward the point of collision at the rate of 11 to 17 feet per second, and the street car was possibly traveling at the rate of 26 to 36 feet per second. In such a situation plaintiff in the exercise of due care did not have much time to watch to the left to guard against the unexpected from a vehicle approaching from that *Page 325 direction. His primary duty was to know that he had the right of way; and then to perform his duty toward others, if any, to his right and to those, if any, in front of him. Having the right of way, he cannot be expected to continually watch the vehicle on his left in anticipation of negligence on its part. He had a right to assume that it would be properly operated.
As was said in Watson v. Minneapolis St. Ry. Co. 53 Minn. 551,55 N.W. 742, there was nothing to indicate that his vehicle would not be seen and his priority of right recognized. Plaintiff here has the support of the right of way which Watson did not have as a matter of law. The suggestion that plaintiff should have looked at the street car a second time before going upon the track to protect himself from contributory negligence as a matter of law is sufficiently answered by Hillstrom v. Mannheimer Bros.146 Minn. 202, 178 N.W. 881, wherein the court said:
"Was plaintiff's failure to look to the west a second time when he would have had a clear view up Selby avenue contributory negligence as a matter of law? In view of the fact that he did look under the circumstances we have detailed and that the jury might properly find that he had the right-of-way and that the truck was driven upon that part of the street intersection where it had no right to be and where plaintiff had no reason to anticipate its presence, we answer the question in the negative."
Under our decisions one is not necessarily guilty of contributory negligence in attempting to cross ahead of a vehicle approaching even from the right. Kunz v. Thorp Fire Proof Door Co. 150 Minn. 362, 185 N.W. 376; Soderberg v. Taney, 152 Minn. 376,188 N.W. 993. In Armstrong v. Minneapolis A. C.R. Ry. Co.153 Minn. 374, 191 N.W. 47, language was aptly used that is appropriate here:
"It is defendant's contention that, considering the evidence as a whole, it conclusively appears that the truck driver was guilty of contributory negligence and for that reason the court erred in denying its motion for a new trial. As a rule, when there is a collision between two motor vehicles after both have entered the danger zone at street intersections, only a few seconds of time separate the *Page 326 first appearance of danger from its disastrous consequences. Whether a man was negligent in what he did or failed to do under the circumstances presented is a question which the combined knowledge and experience of 12 jurors enables them to determine better than anyone else. Hence, in cases such as this, the verdict of the jury should not be disturbed unless the proof is such that upon no rational basis could reasonable minds draw different conclusions concerning the presence or absence of due care. Weiss v. Great Northern Ry. Co. 119 Minn. 355,138 N.W. 423; Kelly v. Chicago, B. Q.R. Co. 142 Minn. 44, 170 N.W. 886. We have considered all the evidence and the arguments of counsel based thereon, and have concluded that contributory negligence on the part of the truck driver was not conclusively proven. We make no analysis of the evidence, for it is not the duty of the court to demonstrate that the evidence was such as to justify the refusal of the trial judge to set the verdict aside. Carver v. Bagley, 79 Minn. 114, 81 N.W. 757; Weiss v. Great Northern Ry. Co. supra."
Again it was tersely stated in Robertson v. Spitler, 153 Minn. 395,190 N.W. 992, that "drivers at crossings must give and take but with a sensible recognition of the law that gives the right of way to the one approaching from the right."
Of course the rules controlling persons using steam railroad crossings do not apply to persons crossing street railway tracks at street intersections. O'Rourke v. Duluth St. Ry. Co. 157 Minn. 187,195 N.W. 896.
We have carefully considered the evidence and conclude that contributory negligence did not exist as a matter of law. It was purely a question for the jury, and, having been properly submitted to the jury, their conclusion is controlling. Anderson v. A.E. Jenny Motor Co. 150 Minn. 358, 185 N.W. 378; Lindahl v. Morse, 148 Minn. 167, 181 N.W. 323; Soderberg v. Taney, 152 Minn. 376,188 N.W. 993; Robertson v. Spitler, 153 Minn. 395,190 N.W. 992; Primock v. Goldenberg, supra, page 160. The evidence of plaintiff's contributory negligence falls short of being so conclusive that reasonable minds could not differ. *Page 327
Were the damages excessive and given under the influence of passion and prejudice? Plaintiff was a young man 22 years old earning $27 per week. He was injured June 9, 1923. For 3 months he was confined to his home in bed most of the time, but about on crutches a part of the time. He was then taken to a hospital. He was black and blue on his right side; had superficial wounds on his limbs and body; pains in his chest for 6 weeks; spat blood for 4 months, and had severe pains in his hips. He was wrapped in adhesive tape; could not stand alone and could not move his legs at his hips. At the hospital he was kept in bed for 3 weeks and then placed in a plaster cast from hips to shoulders. This was painful and a new one was applied which covered his body and right leg. He kept this on 2 1/2 months. It was to keep him from moving. Later he was placed in a steel brace with stays in it and he was still wearing this at the time of trial in April, 1924, and was then still in the hospital. At the time of the trial he could sit only on his left buttock or hip with the right leg extended to avoid pain. He has suffered continued pain in the pelvic region. He suffered a definite separation and slight amount of slipping at the base of the right sacroiliac joint. The sacrum was displaced downward. He is disabled for an indefinite time. He will eventually be able to do light work, but will not entirely recover and will never, in the opinion of medical testimony, be able to resume his regular occupation of a truck driver. The learned trial court, in a memorandum says: "The trial was remarkably free from any appeals to passion or prejudice or other conduct too frequently present in personal injury cases. If the court, for injuries such as here claimed, with the duration of the ailment problematical should undertake to reduce the verdict, it could have no legal check to tell it where to stop. Under the testimony of the doctors the amount of the verdict is legally sustained and that is as far as a court should inquire." A most admirable statement in its juridical character and it removes all doubt, if any, as to the presence of passion or prejudice concerning which the record is silent. On this branch of the case there is nothing that permits or calls for our interference.
Affirmed. *Page 328