Coel v. Green Bay Traction Co.

133 N.W. 23, 147 Wis. 229, 1911 Wisc. LEXIS 224

• Court: Wisconsin Supreme Court
• Decided: November 14, 1911
• Status: Published

Opinion

Vinje, J.

The defendant challenges every finding of the jury except the one assessing damages. A brief statement of just how the injury occurred will aid in understanding the scope of such challenge. Plaintiff got off the south-bound car at West Mason street, as he claimed and as the jury found, after it stopped. He then proceeded eastward behind the car, listening for an approaching car from the south on the east track. He heard no sound of gong or bell, so he concluded to go east far enough to look south beyond the car he had just alighted from to see if a north-hound car was coming. When he was about a foot west of the east rail of the west track, the one upon which the car he had alighted from was standing, and just as he was about ready to stop to look for a north-bound car, he stumbled with his right foot, took a long step with his left foot to save himself, and another with his right foot, and then was struck by the north-bound car, resulting in a fracture of his thigh bone about half way between the hip and knee. The car did not run over him. It is quite certain that the bumper on the west side of the car struck him. The bumper is the extreme end of the body of -the car, and consists of a piece of wood about six inches in thickness, the bottom of which is about twenty-one and one-fourth inclies above the pavement. It projects a foot and a half beyond the fender. The clear space between two cars passing each other is two feet and two and a half inches, and the distance between the inside of the west rail of the east track and the inside of the east rail of the west track is five feet nine inches.

Defendant, to sustain its claim-that the evidence shows the gong was sounded, relies upon the rule that the testimony of its witnesses that it was sounded, being positive, outweighed that of the testimony of plaintiff’s witnesses, which it claims was negative merely. Lambert, the motorman of the northbound car, and Erdrnan, the conductor on the south-bound car, testified that the gong of the north-bound car, as it approached the crossing, was sounded. Opposed to this was the testimony of four witnesses on behalf of plaintiff. Miss Uronan, who was on Broadway near West Mason street and who observed the accident, said she heard no gong sounded. Anton Jiore, a passenger on the same car with plaintiff, who alighted at the Mason street crossing and was less than fifteen feet from plaintiff at the time he was struck, testified he heard no "gong or bell ring. Martin Burke, a police officer in Green Bay for eleven years, was on the north-bound car and saw the rpotorman set the brakes when the accident happened. He says he is positive that no gong was sounded, because as soon as the accident happened he remembered that fact; and the reason he remembered it was .because he had been on a number of cars causing injury and knew that the question of warning by bell or gong was an important one. He supposed the injury must have been caused by the other car because no gong was sounded on the one he was on. His hearing was good and his attention was not diverted. The plaintiff testified that he was listening for a north-bound car because he knew one might be coming at any time, and that he heard no gong or bell.

Conceding that the testimony of Miss Cronan and of Mr. Jiore is negative merely, the same cannot be said of that of Mr. Burke and of the plaintiff, especially that of the latter. Burke’s mind dwelt upon the question of warning at the time of the accident. True, it did not begin to do so until plaintiff had been struck, but it did before the car came to a stop. So it must be fairly said that the question of warning by bell or gong was present in his mind at the time of the injury, and that his testimony that none was sounded was not negative merely. The same is true to a greater extent of plaintiff’s own testimony. He was listening for a bell or gong because he realized that it was of the utmost importance for him to do so, as a ear might be coming north at any time. He had nothing over his ears, his hearing was normal, and he was in a position to hear, and he listened and heard none. Under such circumstances, his testimony that no bell or gong was sounded rises above the level of mere negative testimony. Where the existence or nonexistence of a physical fact ascertainable by the senses is called to the attention of a witness at the time and place it is claimed to exist or not exist, and the witness is in a position to ascertain its nonexistence as readily as its existence, and he makes an observation to ascertain what the fact is, 'his testimony that it did not exist is not negative in the sense that it can be said as a matter of law that positive testimony outweighs it. Such testimony, opposed by testimony of its existence, raises an issue of fact for the jury. Van Salvellergh v. Green Bay T. Co. 132 Wis. 175, 111 N. W. 1120, and cases cited; Anderson v. Horlick's M. M. Co. 137 Wis. 569, 119 N. W. 342. Testimony can be said to be truly negative only when it tends to prove the nonexistence of a fact by reason of a mere failure to observe or remember-its existence. If it asserts an observation as to its existence and a recollection of what that observation was, a denial of its existence based thereon is as much affirmative evidence as is an assertion that it did exist. Anderson v. Horlick’s M. M. Co., supra. The cases of Wickham v. C. & N. W. R. Co. 95 Wis. 23, 69 N. W. 982, and Ryan v. La Crosse City R. Co. 108 Wis. 122, 83 N. W. 770, relied upon by defendant, are not in conflict with this rule. In each of those cases the witnesses who testified they did not hear the warning were paying no attention to the fact as to whether or not it was given at the time the accident occurred. None of them remembered that a warning was given. That was as far as their testimony went.

The jury found the north-bound car was run at a dangerous rate of speed as it passed the south-bound car. The defendant takes issue with this finding, not so much because the jury has found a higher rate of speed than the evidence warrants, but because they have denopiinated such speed dangerous. The undisputed testimony shows the car was going at least as fast as cars usually go in-_the middle of a block passing from one street to another, flrhere is much evidence to show that it went faster; and it is an undisputed fact that if plaintiff was struck at the south, crossing of West Mason street, as he claims, the car went a distance of 150 feet before it came to a stop, while if he was struck .at or near the north crossing thereof, as claimed by defendant, the car passed him 120 feet before it was stopped. Tlae^notorman testified that he felt the car strike something, ant] that he then applied the brake. There was no snow on the ground, and there is no evidence that the rails were wet, or that the car was going down grade, or that the brake wTas out of order. The motorman said the slack was out of the/.brake and the power off when he struck plaintiff. UndeF "shah conditions, the fact that it required 120 feet or more in which to stop the car is, in the absence of any other adequate explanation, indicative of a high rate of speed. But assuming that the car passed the south-bound one at a rate of speédttip greater than is usual in the middle of a block- — an assumption as favorable to the defendant as can possibly be indulged in under the evidence,— cannot such a rate of speed be called dangerous under the circumstances ? The intersection of Broadway and West Mason street was in the business portion of the city, and the crossings were used not only by the patrons of the defendant, but by the public generally. The motorman could see the southbound car coming and had reason to anticipate that it would stop to discharge passengers, even if, as claimed by him, it had not come to a full stop. Under such circumstances it was his duty to slow up and have his car under complete control while passing the other car. He testified he knew the defendant had a rule that a car on a double track passing another standing still should be under full control, and by that he meant a car was to be run slow enough so that it could be stopped in but a few feet. This rule of the defendant company is but the rule of law applicable to such a situation. Not only must the passing car be under full control, but a sharp lookout must be kept by the motorman, and he must give warning by bell or gong or whistle of his approach. 2 Nellis, Street Railways, § 346; 2 Thomp. Comm, on Neg. § 1392; Bremer v. St. Paul City R. Co. 107 Minn. 326, 120 N. W. 382; Pelletreau v. Metropolitan St. R. Co. 74 App. Div. 192, 77 N. Y. Supp. 386, affirmed 174 N. Y. 503, 66 N. E. 1113; Louisville R. Co. v. Hudgins, 124 Ky. 79, 98 S. W. 275, 7 L. R. A. n. s. 152; Chicago City R. Co. v. Robinson, 127 Ill. 9, 18 N. E. 772, 4 L. R. A. 126. See, also, 4 L. R. A. n. s. 729, note.

It is not necessary to consider and determine the question whether or not plaintiff had ceased his relation as a passenger with the defendant at the time he was struck. He was on a street crossing, and his rights as a mere traveler on the street entitled him to an observance on the part of the defendant of the rule just stated. The reasons for the rule are obvious. When a car is standing still discharging passengers, those wbo have occasion to cross tbe tracks behind it have bnt á limited opportunity to see a car coming in the opposite direction. They are in close proximity to danger without adequate means of observation. True, such a situation imposes upon them the exercise of care commensurate with the danger of the situation. But neither the street railway company nor the passenger or traveler has a right to assume that the other will take sufficient precautions to prevent injury. Each must exercise care. Each is bound to anticipate that an injury under such circumstances may result to someone if care is not exercised. Weber v. K. C. C. R. Co. 100 Mo. 194, 12 S. W. 804, 13 S. W. 587, 7 L. R. A. 819. Hence the duty on the part of the company to keep a lookout, to give warning by bell, gong, or whistle of the approach of the car, and to have it under full control so that it may be stopped within a short distance should any one suddenly come in front of it. In view of the rule of law applicable to such a situation, it ■follows that the conceded rate of speed of the car was a dangerous one, and that the finding of the jury to that effect was in accord with the evidence.

The contention that plaintiff alighted from the car before ■it came to a full stop cannot be sustained, as there is ample evidence to support the finding of the jury. There is some conflict in the testimony as to whether or not the car was standing still when he got off from it, but even defendant’s witnesses say it was standing still when he was struck.

The negligence of the motorman found in answer to the fourth question must have consisted in his failure to ring the bell and in running his car at a dangerous rate of speed, as no other negligence is alleged or proven in the case.

We come now to what we conceive to be defendant’s main contention in the case, namely, that neither the failure to ring the bell nor the excessive rate of speed was the proximate cause of plaintiff’s injury. It is claimed that the element of reasonable anticipation of injury is wanting; that there is no causal connection between tbe failure to ring tbe bell or tbe bigb rate of speed and tbe injury, and that plaintiff’s stumble was tbe proximate cause thereof. Tbe argument to support tbe alleged absence of tbe element of reasonable anticipation is based upon tbe erroneous assumption tbat it was necessary that defendant should anticipate tbat plaintiff would stumble and come in contact with tbe car in tbat manner. Counsel say: “To bold tbe motorman to tbe doctrine of reasonable anticipation under tbe facts of this case it must be said tbat be should reasonably antidipate tbe sudden stumbling of this plaintiff resulting in tbe collision;” and again: “Nor can it be said tbat an ordinarily prudent man should reasonably anticipate tbat another will stumble and so be injured.” These extracts are fair samples of tbe argument on this question. Tbe element of reasonable anticipation is not limited to such a narrow field. It is not necessary tbat an ordinarily prudent man ought reasonably to have anticipated tbe particular injury to tbe plaintiff or to any particular person. It is sufficient tbat such a man ought reasonably to have anticipated tbat bis conduct might probably cause some injury to another. Mauch v. Hartford, 112 Wis. 40, 87 N. W. 816; Morey v. Lake Superior T. & T. Co. 125 Wis. 148, 103 N. W. 271; Sparks v. Wis. Gent. R. Co. 139 Wis. 108, 120 N. W. 858, and cases cited. Hence it was within tbe field of reasonable anticipation tbat someone at some time might stumble or fall, or in some other natural manner suddenly come in front of a moving car as it passed a standing one discharging passengers. From what has already been said on tbe subject of reasonable anticipation in connection with tbe question of tbe dangerous rate of speed, it follows that tbe jury were warranted in finding tbat the motorman ought reasonably to have anticipated some injury to someone as a probable result of bis failure to ring tbe bell and tbe bigb rate of speed of tbe car.

It is argued tbat tbe failure to ring tbe bell bad nothing to do with the stumble or with the injury. Counsel say: “The object of ringing the bell on a street car is to warn people of the approach of a car, but plaintiff was warned, because he says he knew that a cár might be approaching and that he was intendinig to look and see if one were in fact approaching.” Here again is a singular confusion of ideas. Knowledge of the fact that a car may be approaching is quite different and distinct- from knowledge of the fact that it actually is approaching. True, plaintiff knew that a, car might be coming, and for that very reason he proceeded to ascertain if it was in fact coming. Had the bell beenjmng there would have been no necessity for his looking. The message of a ringing bell on an approaching car is not, “I may be coming at any time it is, “I am coming now.” The jury might well say that it was for lack of such a message that plaintiff put himself in a position where a stumble would precipitate him against the car, and therefore a failure to give it, was a producing cause of the injury. Kujawa v. C., M. & St. P. R. Co. 135 Wis. 562, 116 N. W. 249.

Was there a causal connection between the high rate of speed of the car and plaintiff’s injury? _ Defendant’s counsel claim not. The gist of their argument is that it was plaintiff’s stumble and not the speed of the car that caused his injury; that if plaintiff had not stumbled- no injury would have resulted whether the car was traveling'fast or slow. The car might have been at the place of the accident even if it had traveled at a slow rate of speed, and plaintiff might have been injured just the same whether the car was going fast or slow. The fact that the car was at a point .where plaintiff could stumble into it did not constitute negligence. It was merely a condition that existed. It so happened that the car was there when plaintiff stumbled into'it; it might have so happened had the car been under perfect control or standing still. We quite agree with counsel that the fact that the car was where plaintiff could stumble into it shows no causal connection between tbe speed of tbe car and tbe injury, and we quite agree that there is no force in tbe contention that bad tbe car not been moving at so bigb rate of speed plaintiff could bave bad bis stumble all by bimself, as tbe car would not bave been there. We are further of tbe opinion that it is idle to speculate upon what might bave happened under other conditions. Tbe question that confronts us is, What causal connection is there between tbe conditions actually existing and tbe injury ? Defendant says tbe excessive speed of tbe car did not injure plaintiff; it Was tbe stumble, coupled with tbe presence of tbe car at tbe time and place of such stumble, and it relies upon tbe case of Holdridge v. Mendenhall, 108 Wis. 1, 83 N. W. 1109, to sustain its position; and it cites other cases where it has been held that excessive speed was not tbe proximate cause of tbe injury. There are no doubt many such cases. Tbe Holdridge Case is perhaps as good an illustration of them ás can be found. There a little boy was following behind a team in tbe middle of tbe block. Tbe court says:

“It was practically undisputed in tbe case that tbe boy unexpectedly stepped or ran in front of tbe car when only a few feet distant, and when it could not bave been stopped, nor effective warning given, before it ran over him, whatever its speed.” Page 5.

It is obvious that tbe injury resulting from being run over by a slow-moving car and a fast-moving car is likely to be tbe same. But does it follow from that that a blow from a slow-moving car is likely to produce tbe same result as a blow from a fast-moving car ? ' Can it be said that tbe impact caused by a stumble in front of a car moving at tbe rate of ten to fifteen miles per hour is no greater than that caused by a car moving three or four miles an hour ? We think not. In tbe case at bar plaintiff’s injury was not caused by bis being run over; for be was not run over. He stumbled in front of tbe bumper of tbe car and tbe blow broke bis thigh bone. It is evident tbe severity of tbe blow would be in direct proportion to tiie speed of the car. Well might the jury say that it was reasonably certain that if the car had been under complete control and moving at a proper rate of speed no broken leg would have resulted. The causal connection between the effect of a blow and the velocity of the object causing it seems obvious. It is natural and probable that a swiftly moving car would break a bone under the circumstances of this case. It is not natural and probable that a car under complete control would do so.

But it is urged that plaintiff’s stumble, assuming that he was not guilty of contributory negligence, was a pure accident, and the defendant should not be held responsible for the result on that account. ISTo one is seeking to hold defendant responsible for an accident. By failing to ring the bell it induced plaintiff to approach nearer the east track than he otherwise would. When near the track a stumble precipitated him upon it. So defendant’s negligence in failing to ring the bell brought plaintiff within the field of danger, and when within that field it negligently inflicted upon him a blow severe enough to break his thigh bone owing to the dangerous rate of speed of the car. The element of accident, it would seem, is reasonably eliminated, and liability made to attach to negligence and not to accident.

The jury found that the motorman negligently operated the car and that such negligence was the proximate cause of the injury. The negligence, as already pointed out, consisted in a failure to ring the bell and in an excessive rate of speed. They therefore found that these two negligent acts combined constituted the proximate cause of the injury. That two negligent acts may concur to constitute the proximate cause of an injury is well settled. Glettler v. Sheboygan L., P. & R. Co. 130 Wis. 137, 109 N. W. 973.

The finding of the jury-that plaintiff was not guilty of contributory negligence we think is supported by the evidence. The defendant claims he was negligent in not waiting till the south-bound car had passed on so that he could have an unobstructed view southward of the east track. We think no such duty devolved upon him. He got off first and he saw others about to follow him. He listened for a north-bound car and, hearing none, he proceeded to look for it, with the result already known. There was a distance of five feet nine inches between the nearest rails of the two tracks and a clear space of "two feet two and a half inches between cars when they passed each other. Under such circumstances it was a question for the jury as to whether or not it was negligence to proceed far enough to look south beyond the standing car. It appears that the street had a brick pavement. Plaintiff could not reasonably anticipate that he would stumble upon it at that particular time and place. Koutsky v. Forster-Whitmam L. Co. 146 Wis. 425, 131 N. W. 1001. He says he is unable to state what occasioned the stumble and no one else has succeeded in discovering its cause, so we must regard it as a pure accident.

By the Gourt. — Judgment affirmed.