1 Reported in 201 N.W. 293. This is an appeal by defendant from an order denying an alternative motion for judgment notwithstanding the verdict or for a new trial.
The important question in the case is the claim that plaintiff was guilty of contributory negligence. Plaintiff, with a small child, walked southerly on the west side of Hennepin avenue in Minneapolis to Eleventh street. Defendant's truck traveled northerly along the easterly side of Hennepin avenue and made a left hand *Page 126 turn onto Eleventh street. There were 6 or 8 persons, or more, standing near the curb on the sidewalk along which plaintiff walked. She said when she got near Eleventh street she looked and didn't see any cars coming. Later she said: "When I started stepping off I looked and a truck was right in front of us, so I grabbed my little girl and I threw her on the sidewalk," etc. Plaintiff said she had taken just one ordinary step down off the curb when she looked the second time and the truck then was right in front of her, and that the front wheel hit her and caused her to fall on her right side, and the right front wheel of the truck crushed her foot against the curb causing her injuries which have brought her much trouble. The driver said he did not know whether the truck struck her or whether she walked into the truck.
Unfortunately the record does not show how much time elapsed between the first and second times that she looked. Nor does it disclose her movements in detail in the meantime. There is no way to determine where the truck was when she first looked, nor how far it traveled before she looked the second time. The driver said he stopped the truck on Hennepin, before arriving at the cross street, to let off a person riding with him. He also said that he stopped the truck as he approached the cross walk on Eleventh street to see if the people standing at the curb were going to go across, and when they did not, he started up, and as he did so she stepped off the curb. Again the record fails to show how far the front of the truck was from the cross walk when it stopped, but possibly it may be inferred that this distance was 6 or 8 feet. He said the truck was about 3 feet from the curb. He started up without blowing the horn. He did not give any warning at any time.
The small child doubtless required some of plaintiff's attention. How much time elapsed between the times she looked? We do not know. Inferences may be drawn. Where was the truck when she first looked? Defendant has failed to show where it was. There was a street-car pole and a General Electric pole near the corner, but their location is indefinite and their effect not clear. Whether the truck crossed the intersection at the center or some distance *Page 127 to the north does not appear. The propriety of a driver having his vehicle under such control, under the circumstances, as to avoid just such an injury to one of a crowd of people apparently in a position to step into the street is an element for consideration. Should she be charged with the responsibility of anticipating the unusual occurrence of a vehicle being run against the curb with its right front wheel nearby and almost among standing pedestrians? The driver apparently had the full width of Eleventh street. How many of the standing persons, if any, were between plaintiff and the truck and whether they were of such stature as to obstruct her view, does not appear. Being an illiterate woman, and not apt in the use of the English language, limited her ability to give minute statements. She said the truck was coming fast, but the driver said it was not. It stopped quickly, though possibly aided in the stop by the curb. It was her duty to look. She could not look all the time nor could she look in the same direction all the time. She said she did look. As to whether her efforts in looking were efficient and reasonable was, under the circumstances, a question of fact and not one of law. There is in our opinion evidence sufficient to support the verdict.
The burden of proving contributory negligence was upon the defendant, and we cannot hold as a matter of law that it has met this burden. The case was properly submitted to the jury. The trial court has approved the verdict.
This case is not controlled by Bowers v. Colonial Warehouse Co.153 Minn. 425, 190 N.W. 609, and Provinsal v. Peterson, 141 Minn. 122,169 N.W. 481, because in those cases it was established as a fact that the pedestrian walked into the truck. In this case this important fact is not established.
Plaintiff's injuries brought her an unsatisfactory experience in seeking medical assistance. The bruise on her ankle or leg in the first instant did not appear serious, but later it became ulcerated and developed into a very aggravating injury. It did not heal. She was advised to submit to an operation, but she was reluctant to do so. She may have to submit to such operation yet. At the time of trial she had been incapacitated by reason of this injury *Page 128 for nearly two years. She was in bed for several weeks; on crutches 5 or 6 months. She has suffered considerable pain and loss of sleep. She has incurred a great deal of expense. She was earning $100 per month as a cook. The verdict was for $2,500. It was not excessive.
Affirmed.