Fisher v. Waupaca Electric Light & Railway Co.

124 N.W. 1005, 141 Wis. 515, 1910 Wisc. LEXIS 63

• Court: Wisconsin Supreme Court
• Decided: February 1, 1910
• Status: Published

Opinions

Tbe following opinion was filed F bruary 1, 1910:

Kerwin, J.

Error is assigned because tbe court refused to direct a verdict in favor of tbe defendant, for the reason that neither negligence nor proximate cause bad been shown upon tbe undisputed evidence. This contention is based upon tbe claim that tbe death of Mrs. Fisher resulted from an unavoidable accident, even if she were killed by tbe defendant’s car, and further that it does not appear from tbe evidence that she was killed by tbe car, but by being thrown from tbe buckboard in which she was riding. Tbe questions involved under this bead are purely questions of fact. Without going into any extended discussion of tbe evidence we will refer briefly to some of tbe leading facts which tbe evidence tends to prove.

Tbe evidence shows that upon tbe day in question tbe deceased, without negligence on ber part or on tbe part of tbe driver, Mrs. Wolcott, was thrown from a buckboard in which she was riding upon tbe street-car track in front of an approaching car, run over, and killed. Tbe car was being operated by a boy seventeen years of age at a salary of $25 per month, who prior to the accident had had very little experience as motorman, and did not use all the means at hand necessary to stop' the car as quickly as it might have been stopped before running over the deceased. The track was straight and level and the horse seen at a distance of 500 or 600 feet, and when the car was within between 200 and 250 feet from the horse it reared up' and acted frightened and the motorman realized the danger. The horse reared up a second time immediately after the first, turned quickly around toward the track, overturning the buckboard, and thr owing deceased upon the track some twenty to twenty-five feet ahead of the ear, which had been moving at the time the horse first reared up at from twelve to twenty miles an hour. Deceased fell with her breast upon the rail, head between the rails and about six or seven feet from the buckboard from which she was thrown, and her feet about two feet from the buckboard. The car passed over the body and stopped between thirty and forty feet from it. Immediately thereafter deceased made movements of the lips apd sounds as though endeavoring to speak. Upon examination it was found that the neck was broken, the back broken in two places, and one arm broken. The car was equipped with a hand brake, a controller lever to regulate the current, and reverse lever to change the gear and machinery. In order to make an emergency stop the current must be shut off, the machinery reversed, the current again applied, and the hand brake used. Under the circumstances the car could have been stopped, upon the appearance of the danger, in forty to fifty feet. The motorman understood the appliances, but failed to use the reverse lever or current, relying upon the use of the hand brake. The ordinance or franchise under which the defendant operated provides:

“Sec. 22. Employees of said street railway shall use all proper and reasonable care and diligence to' prevent any injury to persons and property, and on the appearance of danger to any one on or near the track the cars shall he stopped when by so doing injury may be avoided, or when teams become so frightened as to be liable to become unmanageable by their drivers.”

The car was not provided with a fender, although fender's had been in use many years prior to the time of the injury and since. A physician who examined the body shortly after the injury testified that death was .instantaneous, and might have been caused by the fall from the buckboard or by the passage of the car over deceased; and further says that there were very few and slight bruises and practically no external marks; that the neck might have been broken by the violent rotation of the head. There is also some evidence tending to show that the current was not shut off at all, but that the motorman stopped the car by use of the hand brake, and that immediately after the accident he exclaimed, “If I had only thought to turn off the controller.” The evidence further shows that the horse reared up twice; there could not have been half a minute between the time he reared first and last; he fell close to the track at or about the time the occupants fell from the buckboard, which was cramped on a forward wheel, causing it to tip over. The most approved plan of construction of defendant’s street car required a fender to pick up objects in danger of being run over by the car. The fenders put on defendant’s cars after the injury, and which were on at the time of trial, were an inch or inch and a half above the rail.

The foregoing is the substance of some of the material evidence produced upon the trial bearing upon the error assigned on refusal to direct a verdict. Now upon the facts in evidence the main questions were: Was there sufficient evidence to warrant the jury in finding that the motorman was negligent in failing to stop the car before it came in contact with the deceased ? and, Was deceased killed by the car ? It is insisted by appellant that without the evidence of a witness, Woodnorth., there is not sufficient evidence to support the verdict, and that his evidence is incredible. Woodnorth was not impeached. He appeared to be- a man of education, good standing, and disinterested, and was in position to see and •observe what occurred. Moreover, his evidence, while it docs not coincide exactly with that of the witness Smith as to the distance from the horse to the car at the time the horse reared up, corroborated his evidence in many respects. Smith testified in substance that he was on the car and saw the-horse and two ladies in the conveyance coming when 250 to 300 feet away; that he turned his face in response to a friend who spoke to him, and when he turned back he saw the horse rear, turn half across the road, and jump and continue to jump, and the next jump he made he turned the buggy over; that his attention after he first- saw the horse was diverted just for a second, and when he next looked at the horse he was twenty-five feet from the track and the car was probably 100 feet from deceased; that he felt the brake being set, and that was what called his attention to look at his friend; that he felt the jar; that he felt the brake before he saw the horse in the air. So it will be seen that this evidence, properly considered, with due allowance for slight variance as to distance and time between the first sight of the horse and the accident, corroborated Woodnorth. It is quite apparent that the motorman saw the horse rear and apprehended the danger when more than 100 feet from him, even upon the evidence of Smith, and this rearing was doubtless the second time. Even on this evidence the jury would have been justified in finding that due diligence was not used by the motorman, because there is credible evidence that the car could have been stopped by the proper use of the appliance within a distance of seventy-five feet or less when going at fifteen miles per hour, and there is evidence that it was going slower and the car more than 100 feet away when the horse was rearing and plunging toward the track. Moreover, the car ran from thirty to forty feet after striking deceased, wbicb according to Smith’s evidence would make a run of at least 130 or 140 feet after the horse reared and jumped toward the car, while the car could have been stopped by proper management within sixty-five or seventy-five feet.

There is also the question of whether the car was constructed upon the most approved plan, in consequence of the lack of a fender; and while ch. 390, Laws of 1907 (sec. 1636—58, Stats.), providing for use of fenders, did not go into effect until after the injury in this case, it was passed before, and made manifest at once upon its passage the legislative intent of the necessity for su.ch safety device. At common law the defendant was bound to so use the street as to regard the safety of the traveling public. Its use of it was a joint use with the public, and neither defendant nor the public has a right to endanger the use by the other. Fitts v. C. R. Co. 59 Wis. 323, 18 N. W. 186. And independent of the rule at common law and sec. 1862, Stats. (1898), which provides that street railways must be constructed on the most approved plan, the defendant under its franchise was bound to use all reasonable care to prevent injury to persons and property, and on the appearance of danger stop its car when by so doing injury might be avoided.

The point is made that the resultant injury could not have been foreseen, because no one could apprehend that the horse would turn and jump upon the track in front of the approaching car. But the motorman testified that when the horse reared he apprehended danger, as he well might when a horse so acted in such close proximity to a rapidly approaching car. The point is not well taken. Butler v. M. & St. P. R. Co. 28 Wis. 487; Kujawa. v. C., M. & St. P. R. Co. 135 Wis. 562, 116 N. W. 249; Sarles v. C., M. & St. P. R. Co. 138 Wis. 498, 120 N. W. 232.

Again, it is argued that the negligence of defendant, if negligence was'shown, was not tire proximate cause of the injury, because it does not appear from tbe proof that the deceased was killed by the car. Of course upon this point, as well as upon the point of defendant’s negligence, all that was necesr sary was sufficient evidence from which the jury would be entitled to find the fact The vehicle in which deceased and Mrs. Wolcott were riding was quite low, a buckboard, and deceased was not thrown far when she fell; her feet being only about two feet from the buckboard. From the external evidence of bruises and injuries the inference is strong that she was killed by being run over by the car and not by being thrown from the buckboard. The marks on the body and - its position and appearance when found, in connection with ‘the further fact that the horse fell at or about the time the buckboard tipped and the occupants fell out, further support the idea that the deceased was killed by the car and not by the fall from the buggy. There are other facts and circumstances which we need not detail supporting the inference that the deceased was killed by the car and not by the fall from the buckboard. We have also the judgment of the learned trial judge who heard the evidence, and whose opinion on that, as well as upon all other facts in the case, on refusal to disturb the verdict, is entitled to weight. We arc therefore forced to the conclusion that we should not disturb the-verdict on the question of defendant’s negligence or the proximate cause of the injury. Wilson v. C. V. E. R. Co. 120 Wis. 636, 98 N. W. 536; Gessner v. Roeming, 135 Wis. 535, 116 N. W. 171; Gould v. Merrill R. & L. Co. 139 Wis. 433, 121 N. W. 161.

Error is assigned upon the admission of the ordinance or franchise of the defendant in the town of Farmington, on the ground that said franchise is admitted in the answer; hence the admission of an admitted fact was error. It is at least doubtful whether the answer admitted the franchise alleged in the complaint; but even if it did there was no prejudicial error in admitting the evidence.

Error is assigned .on the admission of evidence respecting the competency of the motorman when he first began to work, ■on the ground that his competency, if material at all, should have been confined to the time of the injury. But his knowledge of the work at the time he began work was competent as bearing upon his competency at the time of the accident, in view of his limited experience as a motorman before the injury. His competency was in issue and the evidence material and relevant. Nor was there prejudicial error in the admission of evidence respecting the condition of the lever of the •controller after the accident; its weight was for the jury.

Error is’ assigned on the admission of the evidence of an alleged expert respecting the proper equipment of the car, on the ground that it was not shown that he was qualified to testify as an expert. The evidence respecting his qualification to testify as an expert was sufficient, and his evidence to the effect that the most approved plan of construction required a fender to pick up objects in front of the ear competent, in view of statutes and the franchise. Fitts v. C. C. R. Co. 59 Wis. 323, 18 N. W. 186; State ex rel. Att’y Gen. v. Madison St. R. Co. 72 Wis. 612, 40 N. W. 487; Wright v. Milwaukee E. R. & L. Co. 95 Wis. 29, 69 N. W. 791.

There was no error in excluding evidence offered to show that a good-sized dog on a track in Rockford, Illinois, was not protected by a fender.

Several errors are assigned upon the charge. The court ■charged the jury that the defendant’s car was running at a negligent and reckless rate of speed, but this was said by way of presenting to the jury the issues in the case as claimed by the plaintiff, and the court in another part of the charge distinctly told the jury “that the rate of speed of the car as it approached the conveyance in which Mrs. Fisher was riding was not negligent.” ' Nor was the statement of the provisions of the ordinance prejudicial error when considered in connection with the whole charge. The whole charge, when read to-getber, respecting tbe duty of tbe defendant under tbe franchise as well as at common law was a fair statement of tbe law as applied to tbe facts proved.

Tbe error assigned on failure of tbe court to define proximate cause is without merit. No .request was made for such specific instruction, hence no prejudice resulted from failure to give it. Miles v. Stanke, 114 Wis. 94, 89 N. W. 833.

Error is assigned on tbe charge respecting use of fenders as a proper equipment. Tbe subject has been heretofore referred to in regard to admission of evidence. Tbe evidence showed that fenders bad been in use, and were necessary in-complying with tbe law as to tbe most approved plan of construction. Tbe court charged:

“Whether or not tbe defendant, as a duty to tbe public, should have provided a fender as a necessary part of tbe equipment of tbe car in tbe interest of safety to the public or of persons who may come or be upon or in tbe vicinity of tbe defendant’s cars, is a question of fact to be determined by you, as jurors, from tbe whole evidence. If .you shall be therefrom affirmatively satisfied, in tbe manner stated, that it was such duty of tbe defendant to provide and maintain a fender, in such case you should so find. If not so affirmatively satisfied that it was tbe duty of tbe defendant to operate its cars with a fender, in such case you should so find.”

We find no error in this portion of the charge. Sec. 1862, Stats. (1898) ; Fitts v. C. C. R. Co. 59 Wis. 323, 18 N. W. 186; Winstanley v. C., M. & St. P. R. Co. 72 Wis. 375, 39 N. W. 856.

Error is assigned on tbe following portion of tbe charge:

“There is or may be, however, a difference between operation of such car on city streets and upon country roads outside of tbe cities, where opportunities are not so frequent for horses and drivers to become accustomed to tbe presence and tbe dangers of running such cars.”

Tbe obvious intention of the learned judge was, in giving this portion of tbe charge, to impress upon tbe jury that all the facts and circumstances surrounding tbe situation must be •taken into account. It appears from the photographs produced upon the trial that the street railway track was on the south side of the highway, leaving tire traveled track for teams wholly on the north side, so that teams were compelled to travel on the north side of the car going either way, contrary to the usual custom of passing where the track is in the center of the street. This and other facts and circumstances, some of which are mentioned by counsel for respondent and apparent to the trial judge, may well have justified the distinction drawn in the charge. But in any event we cannot say prejudicial error was committed in this regard.

The following portion of the charge is complained of:

“In this case, if you shall find from all the evidence before you that the motorman, under the circumstances shown, had reason to apprehend from what he saw that the horse was likely to become unmanageable and run away or otherwise injure himself or the persons in the carriage, it was his duty to use his best efforts, making use of all the means at his command and all the methods and appliances upon his car, to stop the car as quickly as could thereby be done, if so doing would be likely or tend to avoid danger of injury or danger to any persons or property in peril. If you shall so find that the motorman neglected to do anything so reasonably required of him, under the circumstances as above stated, if they existed, and such failure or negligence upon his part was the proximate cause of the death of Mrs. Fisher, it will be your duty to return your verdict for the plaintiff in this action.”

• We find no prejudicial error in this part of the charge. It is said that the evidence is undisputed that by the use of the reverse lever the car could not have been stopped in the distance that it was. But even if it were, it would not make the charge reversible error. But the evidence is. not undisputed. There is evidence that to make an emergency stop the reverse current is necessary.

Nor do we find prejudicial error in the portion of the charge to the effect that if a fender had been provided it would have “contributed or- tended to protect or save Mrs. Fisher from death or injury,” on the ground that the instruction ■should have been to the effect that the fender would have in fact saved Mrs. Eisher from death. We think the instruction was in better form as given than as suggested.

It is lastly insisted that the damages are excessive. The ■deceased was thirty-eight years of age, well educated; before marriage was capable of earning about $60 a month, and •since her marriage, in addition to .performing her household duties, had rendered assistance to her husband in the perform■ance of his duties as railroad station agent. Under the re* peated decisions of this court we do not feel justified in holding that the damages awarded are excessive. Stutz v. C. & N. W. R. Co. 73 Wis. 147, 40 N. W. 653; Brown v. Vannaman, 85 Wis. 451, 55 N. W. 183; Donovan v. C. & N. W. R. Co. 93 Wis. 373, 67 N. W. 721; Hayes v. C., M. & St. P. R. Co. 131 Wis. 399, 111 N. W. 471; Ewen v. C. & N. W. R. Co. 38 Wis. 613 ; Ryan v. Oshkosh G. L. Co. 138 Wis. 466, 120 N. W. 264; Pfister v. Milwaukee F. P. Co. 139 Wis. 627, 121 N. W. 938; Wankowski v. Crivitz P. & P. Co. 137 Wis. 123, 118 N. W. 643. We think the case was fairly tried and ■no prejudicial error committed.

By the Court. — The judgment of the court below is affirmed.