Faber v. Herdliska , 194 Minn. 321 ( 1935 )

I cannot agree. The order granting a new trial should be affirmed. In my opinion it clearly was a question for the jury as to whether deceased was guilty of contributory negligence. The conflicting testimony made this a fact question which this court should not decide as a matter of law. It was error for the court not to instruct the jury as to 1 Mason Minn. St. 1927, § 2720-4(7), which prescribes 20 miles per hour as a speed limit where a highway passes through the residential portion of any municipality. It appears from the evidence that the place where deceased was killed was within the village limits of New York Mills; that the land in that part of the village was platted into rather large lots; that there were several residences situated along the north side of the road and that on the south side of the road there were railroad tracks and a railroad yard. It seems to me that it was a fair question for the jury as to whether the place where the accident occurred was a residential portion of a municipality. Not having left this question to the jury, the court acted properly in granting a new trial. Nor do I think the plaintiff has lost his right to object to this instruction wherein the court omitted this section of the statute merely because he did not object nor except at the trial when it was given. He sufficiently specified it as error in his motion for a new trial. I believe the order should be affirmed.