The Mankato free press. [volume] (Mankato, Blue Earth County, Minn.) 1879-1924, 1918-02-01
BLUE EARTH COUNTY CASES
DECIDED BY SUPREME COURT

Thomas H. Williams. appellant, VS..
Arthur A. Dobson Co., ct al, defend
ants, Arthur A. Dobson Co., ct al, re-
spondents.
Syllabus.
In an action to recover damages
against a city and its employee un-
der a contract, for injury sustained
as the result of falling into an open
sewer trench, where the trial court,
at the close of the testimony, direct
ed a verdict for the defendants, evil
dence considered and held, that the
question of contributory negligence
was for the jury, and that the testi-
mony upon the question of the negli-
gence of defendants made case for
the jury.
Reversed.
Opinion.
Action to recover damages for in
jury sustained by plaintiff as the re-
suit of falling into an open sewer
trench made by defendant Dobson
Company for the defendant city und-
er contract. At the close of the tes-
timony, upon motion, the trial court
directed a verdict for defendants.
From an order denying his motion
for new trial plaintiff appealed.
At the close of the testimony a
motion was made on behalf of the
defendants, Dobson Company and the
city, for a directed verdict, upon the
ground that the plaintiff had shown
by his own evidence that he was
guilty of contributory negligence, and
that he had failed to prove that the
defendants, or either of them, were
guilty of negligence. Upon these mo-
tions verdict was directed.
Crystal street is one of the public
streets of the defendants city, extend
ing in a northerly and southerly direc-
right angles about block south of
where the plaintiff resides on Prince
street. The Dobson company had a
contract with the city to install for
it sewerage system. The work of
construction had been in progress
since July 1916, and that on October
26 of that year had been completed
on Prince street and south of Crystal
street, in the center thereof, to with
in about $50 feet of the north cross
walk on Blue Earth street, and the
trench refilled From that point the
trench had been dug south beyond
the cross walk. At the cross walk
the trench was between five and six
feet in depth. The earth from the
excavation had been thrown to the
west side. The cross-walk was of
stone, and in digging the trench one
of the stones, which was about five
feet long, something over two feet
wide and seven or eight inches thick,
was removed and placed at the east
side of the trench.
The plaintiff is a small man five
feet four inches tall, sixty seven
years of age, and keeps a shoe store.
At about 7:45 in the evening of the
day in question, he started out from
his home to walk for little exercise,
going west on the sidewalk to Crystal
street, thence south on the east side
of Crystal street one block to Blue
Earth street. Then he turned west
and proceeded to cross the street on
the stone cross walk referred to. He
testified that it was then very dark,
that in order to follow the cross walk
and keep in line with it he had to
look ahead at the lights a block or
two in the distance, and that when
he got to about the center of the
street, he stumbled and fell over the
stone that had been left there by the
workmen, into the trench, breaking
the hOnoC of tho anlx1n nd
his right foot. Plaintiff further tes-
titled that, while he knew the sewer
was being constructed on Crystal
street, he did not know that the work
had proceeded as far south as this
crossing. He also, testified that there
were no lights at this intersection of
the streets, that there was no guard,
light or signal of any kind at the
crossing, that after his fall he called
for help and that Mr.. Peterson and
his daughter, Gladis Fox, came to his
rescue and assisted him out of the
trench and to his home.
Edward Peterson testified that he
lived at the corner of Crystal and
Blue Earth streets; that there was
street lamp at that corner, but that
it was not burning on the night of
October 26 and had not been for sew
eral nights; that he and his daughter
had been to church and when they
returned heard a cry for help: that
they followed up the cry and found
the plaintiff in the ditch; that he
was standing with his hands on the
top OF a rock that had been removed
from the cross walk and laid on the
east side of the ditch partly on the
cross walk. The ditch had caved in
a little and the stone projected over
It's edge triffe. That it was about
eight o'clock when he assisted the
plaintiff out, and in taking him home
they followed the cross walk to the
sidewalk; that there was nothing or
the cross-walk but the stone: thai
tnere was no light or guard of any
KIND there; that there was a Lantern
on tool box on the east side of the
cross walk running south on Blue
Earth street; that there was another
RED lantern on the southwest corner
OF the same intersection that he knel
down on the stone that night and saw
1t again next morning; that he die
not see any red lights on the stone
that night.
Gladis Fox testified that she wen
down to the place of the acciden
w1tl her father; that it was very dark
In all other respects she corrobor.
ated her fathers testimony.
Mrs. Granlund testified that sh,
passed along the east side of Crysta
l street and ocrocc DI,,o U,on4L