Anderson v. Yellow Cab Co.

• Decision Date: 09 January 1923
• Parties: ANDERSON v. YELLOW CAB CO.
• Court: Wisconsin Supreme Court

179 Wis. 300

191 N.W. 748

ANDERSON

v.YELLOW CAB CO.

Supreme Court of Wisconsin.

Jan. 9, 1923.

Appeal from Circuit Court, Milwaukee County; Oscar M. Fritz, Judge.

Action by Maudine Anderson against the Yellow Cab Company. From a judgment for plaintiff, defendant appeals. Affirmed.

This is an appeal from the judgment of the circuit court of Milwaukee county, in favor of the plaintiff, for the sum of $555.04 damages and costs.

The defendant is the owner of 28 taxicabs used for conveying passengers in the city of Milwaukee, and it has a general office in such city, from which taxicabs are dispatched for the purpose of conveying passengers from one place to another; such taxicabs being operated pursuant to a regular rate applied to the number of miles traveled, registered upon a device known as a taximeter.

The plaintiff, a married woman residing on Fifty-First street, between Vliet and Galena streets, in Milwaukee, on the 14th day of June, 1920, phoned to the general office of the defendant for a taxicab to convey her from the corner of Grand avenue and West Water street in the city of Milwaukee, to her home. Pursuant to an order of the defendant, one of its taxicabs stationed at the Chicago & Northwestern Depot was dispatched to where the plaintiff awaited the cab, and the driver, after receiving directions as to the place of destination, proceeded on the journey, and when he arrived at or about the intersection of Vliet and Fifty-First streets, the plaintiff was twice violently thrust from her seat to the ceiling of the automobile, and sustained severe injuries. It appears from plaintiff's evidence that at the place where the injuries were sustained the road was in a defective condition, and that the cab was driven at an excessive rate of speed.

The case was submitted to the jury upon a special verdict, in which the jury found: (1) That the cab was operated in such a manner as to cause the plaintiff to be violently thrown from the seat; (2) that the driver of the cab was guilty of negligence in operating it in such manner; and (3) that such negligence was the proximate cause of the injury.

After verdict, the defendant moved first for judgment in its favor, notwithstanding the verdict; and, second, for the court to change the answers to questions 1, 2, and 3 of the special verdict from Yes to No, and for judgment upon such verdict as so changed, and for a new trial for alleged errors contained in the instructions. Defendant's motions were denied by the court, and judgment was thereupon ordered and entered in plaintiff's favor as above stated.Cannon, Bancroft & Waldron, of Milwaukee, for appellant.

Wm. A. Schroeder and Horace B. Walmsley, both of Milwaukee, for respondent.

DOERFLER, J. (after stating the facts as above).

The jury, among other things, was instructed as to the degree of care required by the defendant in the operation of its cab at the time and place in question, as follows:

“The duty which the defendant, as a common carrier, owes to a passenger, requires the defendant's employés for the safety of its passengers, in the operation of its cars, to exercise the highest degree of care reasonably to be expected from human vigilance and foresight in view of the mode and character of the conveyance adopted and consistent with the practical prosecution of its business.”

To this instruction defendant duly excepted; it being contended that the degree of care required by the driver of the cab is not that applicable to a common carrier, and that the defendant in the instant case was not a common carrier, and that it was merely liable for injuries sustained as a result of the failure to exercise ordinary care. In other words, defendant contended that the degree of care required of its driver was that applicable to one hiring a private conveyance for a specific purpose, from a garage or a livery stable.

The instruction given by the trial court is substantially in conformity with what has been laid down by the rule adopted in Ferguson v. Truax, 132 Wis. 478, 110 N. W. 395, 111 N. W. 657, 112 N. W. 513, 14 L. R. A. (N. S.) 350, 13 Ann. Cas. 1092, and Oberndorfer v. Pabst, 100 Wis. 505, 76 N. W. 338, and such rule is the rule in Wisconsin as applicable to the degree of care required of common carriers. The Ferguson Case is one involving the liability of a proprietor of a passenger elevator to a passenger, and in that case the following statement from 1 Hutch. Carriers (3d Ed.) § 100, is quoted with approval:

“The safety and lives of those who avail themselves of this means of carriage must of necessity be intrusted in a great measure to the care of those who control and operate the cars. The law, therefore, justly holds that, while the owners of passenger elevators are not insurers of the safety of their passengers, they are bound to exercise in their behalf the highest degree of skill and foresight, or, as some courts have expressed it, the utmost human care and foresight consistent with the efficient use and operation of the means of conveyance employed.”

The language thus quoted from Hutchinson is apt, and applicable to the instant case. The rule requiring the high degree of care referred to is based upon a consideration of public policy designed to protect the lives and limbs of passengers upon such conveyances.

Whether in a strictly technical sense the defendant can be regarded as a common carrier of passengers or not, the defendant was bound to use reasonable care according to the nature of the contract, and that, in view of the nature of the business and the peril to life and limb of the passengers likely to arise from an accident, this reasonable care should be defined as the highest degree of care consistent with the proper transaction of the business. Hinds v. Steere, 209 Mass. 442, 95 N. E. 844, 35 L. R. A. (N. S.) 658.

In Gardner v. Boston Elevated Ry., 204 Mass. 213, 90 N. E. 534, it is said:

“A common carrier of passengers either by rail or by water has so complete a control and the consequences of negligence on his part may be so serious that he is justly held to a very high degree of care for their safety; and accordingly, it has been often said, both in this and other jurisdictions, that he is held to the exercise of the highest degree of care.”

[1] The term “taxicab” describes a conveyance similar to a hackney...