Ryan v. La Crosse City Railway Co.

83 N.W. 770, 108 Wis. 122, 1900 Wisc. LEXIS 153

• Court: Wisconsin Supreme Court
• Decided: November 16, 1900
• Status: Published

Opinions

The following opinion was filed September 25, 1900:

Oassoday, C. J.

This action is brought by the plaintiff to recover damages sustained April 24, 1898, by being struck by the defendant’s car, running south on Caledonia street, between Clinton and St. Paul streets, in La Crosse. Issue being joined and trial had, the jury returned a verdict in favor of the plaintiff for $1,800, and from the judgment entered thereon the defendant brings this appeal.

It appears from the record and is undisputed that at the place of the injury the defendant maintained double tracks; that such double tracks ran from the south on Mill street to-St. Cloud street; then east on St. Cloud street to Caledonia street; then north, crossing in succession Wall street, Windsor street, St. Paul street, Clinton street, and Logan street, and to Sill street, which is the next street north of Logan street, and then the double tracks turn to the east on that street; that cars going south ran on the west track, and those going north on the east track; that the plaintiff lived with his father on the east side of Caledonia street, between St. Paul street and Clinton street, about 25 feet back from the sidewalk, and the walk ran from the house, to the inner edge of the sidewalk at a point about 115 feet north of St. Paul street, and about 235-feet south of Clinton street; that about ■65 feet north of that walk leading to the plaintiff’s home was the south line of the Horner lot, the buildings thereon having a frontage of 25 feet on Caledonia street; that the north line of the Iiorner buildings, projected west across Caledonia street, is identical with the south line of the Club Saloon, fronting on that street on the west side thereof; that the entrance to the Club Saloon was 140 feet south of ■Clinton street, and 117 feet from the street end of the Ryan walk, in a southeasterly direction therefrom, and directly ■opposite a point 96 feet north from- the street end of the Ryan walk; that from such entrance to the south line of the Club Saloon was 10 feet; that 50 feet immediately south of the Club Saloon was occupied by the double store building belonging to B. A. Siggins; that next south of the Siggins place, on the same street, was a barber shop with a frontage ■of 20 feet, and that 80 feet of the frontage next south of the barber shop was occupied by dwellings.

The plaintiff was nine years old July 23, 1898, and hence was three months younger at the time of the accident. A "few minutes before 6 o’clock in the afternoon of the day of the accident the plaintiff was sent by his father from his home to the Club Saloon, across the street mentioned, to get a pail of beer. He testified to the effect that after he got the beer he came out of the Club Saloon, and walked ■out into the street, and then walked down south by the side ■of the track, when he saw that a car was coming from the south on the east track; that he waited until that car passed him going north; that alter that car passed him he was going to go home; that he was walking slowly by the side of the rail, with his pail full of beer, but no cover on it; that he was struck by the car on the left side of the back of his head, and knocked down, and the hind wheels of the car ran over him and dragged him some distance and cut off his toes; that he did not hear any bell just before he was struck, nor any warning or noise, to indicate that the car was coming behind him from the north; that his pail was small, and full of beer up to about two and one-half inches from the top, and that he was carrying it in his right hand; that he was afraid he would spill it; that when he came out onto the street he went over near the street-car track right in front of the saloon, but that he was not sure about that; that he was not looking at the beer; that he had often before that time crossed those tracks, and knew that the cars ran south on the west track and north on the east track; that he did not look up north to see whether there was any car on the track when he came out of the saloon, but did look south, and saw the car at St. Paul street coming north; that he never looked up north towards Clinton street at all; that when he got onto the track he kept on walking down the track; that he did not know how near he got to the west rail of the track; that he waited for the other car to pass him; that he did not stop in the street; that he was listening for a car from the north, and thought a car might be coming down on the track on the west side; that no bell rang; that he was listening for the bell, but did not look at all; that his back was turned to the north all this time, and his face directly south; that he first turned his face to the east when he attempted to cross; that he did not look up at all to see if there was any car or pay any attention to any car from the other direction; that he did not know how far the car going north got by him before •he started to cross, but it got some little distance away; that he was walking slowly in the street, and had not yet ■started to go across the track when the car struck him; that he was still walking down the side, and was outside the rail, when he was struck; that he thought that a car might be along on the west track; that both cars were in the same block when he got struck; that he did not know how far he walked down before he was struck, nor whether it was ■down as far as his father’s house; that he did not look at •all for the car that was coming down, and that he did not listen for it, nor pay any attention to it all; that he had lived there two years, and knew he must not get in front of a car, and that if he did he would get hurt; that he knew all about that.

The plaintiff’s sister, sitting in her father’s house, testified in corroboration of the plaintiff, and also to the effect that the two cars passed right in front of the Horner building, near the south end of the Club Saloon; that the plaintiff was struck about in front of the barber shop; that the bell was not rung immediately prior to-his being struck; that •she did not hear the danger bell, and did not know that it rang. The only passenger on the car testified to the effect that she could not say whether the bell rang or not; that ••she did not remember of hearing the gong sound. A witness for the plaintiff testified to the effect that a car running eighteen miles an hour could be stopped, by applying the brake and shutting off the current, within forty or fifty feet, and in less distance by reversing the current. There is also •evidence to the effect that the defendant was authorized by ■ordinance of the common council to run its cars at a speed not exceeding twenty miles an hour. B. A. Siggins, who ■occupied the building immediately south of the Club Saloon, testified to the effect that he saw the boy just getting up off the ground a little north of the center of the barber shop, ■and that the car had then stopped, and the hind end of it was just a little way south of the barber shop and ten or fifteen feet from the boy, and the front end about thirty feet from him; that there were marks on the ground where the boy had slipped or slid along in the beer about ten feet.

The motorman on the car in question testified to the effect that he had been working for the defendant twenty months; that he rang the bell as usual in crossing oyer Clinton stret; sounded the gong with his foot all the way across that street; that after crossing it he stood erect, with his hand on the controller,— on the brake,— looking •straight ahead down the track; that he passed the northbound car sixty or seventy feet north of the place of the accident; that he saw the boy about the time of the accident ; that when he first saw him he was in the street,— he thought about the south end of Siggins’s store, but could not •say how far away from the street-car track; probably six or eight feet from the gutter when he first saw him; that he was then running diagonally southeast towards his home, probably'fifty feet from the car; that he cut his current and applied his brakes as soon as possible, and sounded his gong more than once; that when the car struck the plaintiff he had got his current off and was tightening his brake; that everything on his car was equipped in good condition; and that he was not running over twelve or thirteen miles an hour ■at the time. The conductor of the car, who at the time was ■standing on the rear platform facing the south, testified to the effect that the car was running at the time ten or twelve miles an hour; that the bell rang as they passed over Clinton street crossing, and while passing the north-bound car, just before the accident; that the first thing that attracted his attention at the point of the accident, or near and just 'before, was the sounding of the gong and the shutting off the current and applying the brakes; that when the car stopped it was ten or twelve feet away from the boy lying •upon the ground; and that the car was twenty-eight or thirty feet long.

Such is a brief summary of the evidence. The substantial facts are practically undisputed. Three questions are suggested by the record.

1. Was the evidence sufficient to take the case to the jury on the question of the defendant’s alleged negligence ? The evidence that the bell was rung while crossing Clinton street and while passing the other car just north of the place of the accident is undisputed. The affirmative evidence that it was again rung after the motorman saw the boy, and before he was struck, establishes that as a fact in the case, and it is not overcome by the negative evidence in the record. The well-settled rule applies that “ the positive testimony of one credible witness to a fact is entitled to more weight than that of several others who testify negatively, or, at most, to collateral circumstances merely persuasive in their character.” Wickham v. C. & N. W. R. Co. 95 Wis. 25, 26, and cases there cited; Sutton v. C., St. P., M. & O. R. Co. 98 Wis. 161, 162. But the motorman admits that when he saw the boy his car was about fifty feet from him, and that the boy was. then six or eight feet from the guttei’, going southeasterly, diagonally towards the track. The boy testified that he was-near the west track, and going directly south, until he turned to go east across the track, but he fails to state just how near he was to the track while going directly south. It stands admitted that the west rail of the west track was fifteen feet from the gutter; so, on the motorman’s statement, the boy was from seven to nine feet from the west rail when he first saw him. Still, on his statement as to the direction the boy was going at the time, and his testimony as to the speed of the car, and the other evidence as to the place where the boy was struck, and as to the place where the car was stopped, and as to the place where the boy was found after the car was stopped, we think it was for the jury to say whether the motorman was at the time in the exercise of ordinary care.

2. The most important question in the case is whether the plaintiff was guilty of contributory negligence. The boy frankly admits that he knew that the south-bound cars ran on the west track, but that he at no time looked north to see if any car was coming on that track, notwithstanding he was listening for a car from' the north and thought that a car might be coming down on that track. In another part of his testimony he testified that he did not listen for a car coming down from the north nor pay any attention to it at all. Had he been an adult, no one, we presume, would hesitate to say that his conduct was simply reckless. The question recurs whether the plaintiff is relieved from such responsibility by reason of his tender years.

It seems to be settled that where, as here, it appears from the undisputed evidence that the plaintiff, considering his age and intelligence, did not exercise proper care in crossing the track, the trial court may determine, as a proposition of law, that the plaintiff is guilty of contributory negligence and cannot recover. Ewen v. C. & N. W. R. Co. 38 Wis. 614 (Syl., point 6). In that case the plaintiff was only eight years old. See Strong v. Stevens Point, 62 Wis. 255, 264, 265, where the boy was only eight years old. Reed v. Madison, 83 Wis. 176. In Massachusetts it has recently been held that an action for damages for the death of a boy eight years and one month old, by reason of the alleged negligence of the motorman, could not be maintained where it appeared “ that the car could be seen for a considerable distance as it was approaching, and its sound could be plainly heard; that the boy’s view was unobstructed; that the railway had but a single track, and the distance from the curbstone of the narrow sidewalk to the nearest rail was only about twelve feet; and that he ran rapidly from the walk to the track in front of the car, and no reason or excuse was disclosed for his so doing.” Morey v. Gloucester St. R. Co. 171 Mass. 164. In New York it has been held that “a child between eight and nine years of age, who attempts to cross a city street in the middle of a block, either without looking for an approaching street car, or in blind and heedless disregard of its rapid approach, is guilty of contributory negligence.” Weiss v. Metropolitan St. R. Co. 33 App. Div. 221, and cases there cited. In a very recent case in New Jersey, “a boy nine and one half years of age, playing in a public street, ran across the track of a trolley road, and was struck and injured by a passing car. He testified that he neither saw nor heard the car. There was no obstacle to his seeing the car if he had looked before going on the track. Held, that a verdict in his favor cannot be supported.” Brady v. Consolidated T. Co. 45 Atl. Rep. 805. A similar rule has been applied in that state to a girl nine years old, injured while attempting to cross a street-railway track. Fitzhenry v. Consolidated T. Co. 46 Atl. Rep. 698. So it has been held in Pennsylvania that, “in an action against a street-railway company to recover damages for the death of a boy twelve years old, a nonsuit is properly entered where the evidence shows that the deceased, while playing with other boys upon the street at the time of the accident, ran upon one of the railway tracks without paying any attention to the approach of a car, a few feet away, and then, hearing a shout from some companions, stopped, looked in the wrong direction, and was struck by the car.” Pletcher v. Scranton T. Co. 185 Pa. St. 147.

In the case at bar the plaintiff had attended school for three years and was at the time in the third grade of the ward school, and it appears from his testimony that he is a boy of unusual intelligence. He had lived right opposite the place of the accident for two years, and was in the habit of daily crossing the tracks to attend school, and saw the oar, just before, pass north on the east track, and knew that ■south-bound cars ran on the west track. There was nothing to prevent him from seeing it nor to divert his attention. He knew all about the situation. The very object of double tracks was to allow the cars to pass at any place. Upon the evidence in the record and the adjudications cited, and numerous others in the same line which might be cited, we must hold that the plaintiff was, notwithstanding his age, .guilty of contributory negligence.

3. This being so, the judgment cannot be sustained, unless we can say from the record that the motorman was guilty •of gross negligence. To constitute such negligence the facts must show such a degree of rashness or wantonness on the part of the motorman as evinces a total want of care for the safety of the plaintiff. Lockwood v. Belle City St. R. Co. 92 Wis. 111-113, and cases there cited; Schug v. C., M. & St. P. R. Co. 102 Wis. 520-523. But there is nothing in the record to indicate that the motorman was guilty of any such rashness or wantonness. He had just passed a car. He was in the middle of a block, where pedestrians were not ordinarily expected to be. The boy, when he first saw him, according to his statement, was from seven to nine feet from the track. He certainly made an effort to stop the car, and there is nothing to show that he intended to run the boj'-•down, nor to indicate that his conduct was reckless, rash, or wanton.

By the Court.— The judgment of the circuit court is reversed, and the cause is remanded for a new trial.