v.
GEORGE G. WHITNEY
Action to recover damages for personal injuries. Plaintiff was struck by an automobile driven by defendant. She had a verdict for $5,500. The alternative motion of defendant for judgment notwithstanding the verdict or for a new trial was denied and he appeals.
The accident occurred on March 26, 1919, about 10 o’clock of a dark murky evening, at the intersection of Summit and Fairview avenues in the city of St. Paul. The two avenues intersect at right angles, Summit running east and west, and at the place of the accident it is divided by parking extending along the center of the avenue, with a paved roadway on either side. The northerly roadway is used exclusively for west bound, and the southerly for east bound traffic. Plaintiff was on the east side of Fairview, walking north to her home. The westerly extremity of the parking is elliptical in form, where the two avenues intersect, so if the north line of the parking were extended to the east line of Fair-view, the point of intersection of the two lines would be several feet beyond the curb around the parking.
Plaintiff testified that she was walking along the sidewalk across the parking, and when she reached the curb looked to her right and saw no vehicle on the north roadway. She then proceeded to cross, stepped from the curb to the pavement,'took one or two steps, and was struck and knocked down by defendant’s automobile and dragged about 25 feet to Fairview avenue, where she lay when picked up shortly after the accident. The automobile ran south about 60 feet before it was stopped near the center of Fairview. Plaintiff also testified that she was wholly unaware of its approach and did not know what had run her down, until she saw the automobile after -it was stopped.
[*329] Defendant was driving west on Summit from Ms residence to a public garage south of Summit where he kept Ms ear. He admitted that'when he turned into Fairview avenue he ran within five or six feet of the curb around the west end of the parking. He testified that both headlights were lit, but that he did not see plaintiff and did not know he had run her down until he felt a jar on the side of the car, and, looking back, saw her lying in the street. Plaintiff testified that the lights on the car were lit when she saw it after the accident, but that she saw no lights before.
Plaintiffs injuries consisted of numerous bruises, a separation of the sacro-iliac joint and a nervous shock, which was the most serious consequence of the accident. At the time of the trial eight months later, she was hysterical and in an anaemic condition. She was a married woman 26 years of age, the mother of two children, and prior to the accident was in normal health.
Defendant’s first contention is that plaintiff was guilty of contributory negligence as a matter of law; the second, that the court erred in instructions given to jury; and the third, that the damages awarded are excessive.
We hold that the question of contributory negligence was properly submitted to the jury and that there was sufficient evidence to sustain a verdict exonerating plaintiff from negligence. Undhejem v. Hastings, 38 Minn. 485, 38 N. W. 488; Stallman v. Shea, 99 Minn. 422, 109 N. W. 824; Arsenean v. Sweet, 106 Minn. 257, 119 N. W. 46; George A. Hormel & Co. v. Minneapolis St. Ry. Co. 130 Minn. 469, 153 N. W. 867; Johnson v. Brastad, 143 Minn. 332, 173 N. W. 668. See also Tuttle v. Briscoe Mnfg. Co. 190 Mich. 22, 155 N. W. 724; Dunkel v. Smith, 168 Wis. 257, 169 N. W. 567; Schnabel v. Kafer, 39 S. D. 70, 162 N. W. 935; Huddy, Automobiles, §§ 460, 473.
Defendant relies on Medcalf v. St. Paul City Ry. Co. 82 Minn. 18, 84 N. W. 633, and Provinsal v. Peterson, 141 Minn. 122, 169 N. W. 481. Both cases are clearly distinguishable from this. In the Medcalf case plaintiff, mounted on a bicycle, overtook and rode to the left of the street car and onto the track on which cars were run in the opposite direction and was struck by an approaching car. In' the Provinsal case, plaintiff blindly walked into an approaching automobile. In each' ease the accident occurred in broad daylight, and there could be no question of plaintiff’s negligence. Defendant also cites Messenger v. St. Paul City Ry. Co. 77 Minn. 34, 79 N. W. 583, but that case is not at all in point.
We conclude that the order appealed from must be and it hereby is affirmed.