The Saint Paul globe. (St. Paul, Minn.) 1896-1905, 1897-03-20

company to convey her from Mime
apolis to st. Paul. The failure was due
to the big electric storm last summer,
which broke down the current poles
on University avenue and stopped all
traffic on the line until the next day..
The plaintiff finally decided to walk
and in doing so became i'll in conse-
Quence of the exposure.
After all the testimony had been sub
mitted, counsel for the street railway
company moved that the court direct
the jury to return a verdict for the
defendant. Judge Willis granted the
motion, and in doing so said:
The complaint alleges that this defend
ant in bad faith, knowing that it could not
complete it's contract Of carriage, received this
plaintiff as passenger at point in the city
OF Minneapolis for transportation to point in
the city of ST. Paul. That it partly performed
its contract of carriage and deposited the
plaintiff at point designated as the Midway
car house. as it is termed in the complaint.
The complaint expressly alleges that the mo-
tive power for propelling street cars over all
the lines operated by the defendant or con-
trCled by the defendant east of the Midway
car house had ceased at the time when the
car arrived at that point That allegation
would cover the Prior avenue line and the in
terurban line. and the lines that were OPP
Grated by the defendant or connected with the
system connected with the defendant. 1t pro-
ceeds to allege that after reaching this point
known as the Midway car house the plaintiff
rema med in one of the street cars of the
defendant for a considerable length of time,
and afterwards left the and walked to her
original place of destination, the place desig-
mated in her own mind at the time of starting
on the journey as to the place of destination.
The cause has not been tried precisely upon
the theory laid down in the complaint. The
cause has been tried upon the theory of
breach of the contract of carriage, and the
initial tort, Misrepresentation lack Of good
tal;h, seems to have been practically waived.
However, the decision Of the pending mot on
does not necessarily hinge upon a rejection
OF that theory of bad faith, but it is proper
10 incidentally remark the fact that there has
been practically waiver Of that claim as the
trial has proceeded.
When the plaintiff reached the Midway car
house, if she desired TO proceed upon the
Prior avenue line it was her duty, if she de-
sired to lay basis for action against the
defendant or any other railway company, to
make demand for a transfer which would
ehtltle her to travel over the Prior avenue
Inc. There was no evidence that she was then
and there misled by the defendant; that the
defendant misrepresented the condition of
atalrs or exercised any fraud or deception
whatsoever.
The complaint comedies that all motive
power FOR prope!ling east Of the Midway
cafhouse was at an end 1t n a state
OF supreme suspense, was nOn-operatiYe at
that time. The testimony shows that under
ordinary circumstances the plaintiff for the
be transported far eastward as a point
known as Smelling avenue, the junction Of
smelling avenue and University avenue. The
testimony of the witness Smith the testimony
CT he witness II cid and Others and also the
testimony Of the plaintiff shows tha- the
fare originally pad in the city of Minneapolis
entitled the passenger TO travel as far east
ward as Smelling avenue. If no excuse were
shown, such as overpowering force, the act
or God or public enemy, the pll:neif in
this case would have es ,ablished a cause of
m art cfn frnr ~ct,1
detention at the Midway car house for the
period OF time commencing at a quarter be-
fore II on the evening of the h Of June and
enolng at o'clock in the morning of the
7th day of June, the time when she left the
car and proceeded eastward upon foot How
ever, the undispu ed testimony shows that
the suspension and incorporation of the mo-
tive power for all cars eastward Of the Mid
way car house arose from accident which
the defendant company and the corrcra ions
owning connecting lines could neither foresee
nor avoid or by The exercise of the highest
care and diligence could they have preven1 ed
the occurrence of this accident. The non-op-
Grafton of the motive power, then, east of the
Midway car house, was owing to the action of
the elements. 1t comes within the defini; ion
OF those occurrences commonly dominated
under the generic term Of the act of God and
constituted a sufficient excuse for the Sis
pension of the act of transportation.
The further limit Of liability established BY
the testimony in any event would be a DELAY
OF the plaintiff at the Midway car house
Non constat but the contract of transporta-
tlon would have been performed on the fol-
lowing day If the plaintiff Lad waited for
the defendant to put itself into a position
to complete the contract She did not wait
She was under compulsion to leave the
car. There is no testimony that she was
elected from the car. There is no testimony
that she would not have been permitted to
wait at the Midway Car house if she had
chosen so to do. She however acts upon
her own independent judgment and under
takes journey upon a wet night and her
NV nf hnr
IN that respect. She does not ask for a trans
fer emitting her to ride on the Prior avenue
car line And so far as she might have been
injured by the want of good faith on the Dart
Of the defendant in indicating through it's
conductor in the laconic language, indicat-
ing that journey was to be undertaken to
81. Paul, he saying, according to her testi-
mony, All aboard for st. Paul" which
would indicate that the car would 90 to
St Paul; that wrong was remcdied by the
plain and distinct offer of the defendant ac-
companled by the present existing power to
execute that offer. to carry the plaintiff back
to the point at which she started Conse-
quently, to give force to that provision of
the law which governed by the highest wis
dom, excuses a common carrier for a failure
or suspension in regard to the execution of
a contract for transportation, where such
failure or suspension arises from the act of
God, II becomes proper to instruct the Jury
in this case that for the damages arising
from the suspension Of the journey-for the
interruption OF the course of transportation
of the plaintiff from the point in the CITY of
Minneapolis at which she embarked to the
point of her destination in the city of St
Paul-She cannot recover in this action and
the defendant is entitled to verdict In any
event, the plaintiff would not be entitled to
recover for the rheumatism and other phy-
steal injuries received by reason of the ex-
cursion which she made upon foot, because
that was voluntary upon her part undertaken
without compulsion, and, under all the cir
cumstances, it absolutely unnecessary
she having the option to remain in the car
so far as the testimony shows, to remain at
the Midway car house or to go back to. the
city of Minneapolis. The jury is instructed
for these reasons. to render a verdict in
favor of the defendant.
ELEVEN ARE IyDIcTED