Brown v. Milwaukee Elec. Ry. & Light Co.

• Decision Date: 05 December 1911
• Citation: 148 Wis. 98,133 N.W. 589
• Court: Wisconsin Supreme Court
• Parties: BROWN v. MILWAUKEE ELECTRIC RY. & LIGHT CO.

148 Wis. 98

133 N.W. 589

BROWN

v.MILWAUKEE ELECTRIC RY. & LIGHT CO.^d1

Supreme Court of Wisconsin.

Dec. 5, 1911.

Appeal from Circuit Court, Milwaukee County; W. J. Turner, Judge.

Action by Guy Brown against the Milwaukee Electric Railway & Light Company. From a judgment for defendant, plaintiff appeals. Affirmed.Houghton, Neelen & Houghton, for appellant.

Van Dyke, Rosecrantz, Shaw & Van Dyke, for respondent.

TIMLIN, J.

In this action for negligent injury, the jury found the defendant negligent, and also made the following finding:

“(3) A person in the exercise of ordinary care, driving a buggy under circumstances similar to those in this case, would have discovered the approach of the car in time to have avoided the collision, if he had made diligent use of his senses of sight and hearing.

(4) Ordinary care did not require the plaintiff to look to the rear with such frequency that, considering such obstructions to his vision as he may have known to exist, and assuming that the car was operated in the usual manner, he should have discovered its approach in time to have avoided the accident.”

“(11) In the exercise of ordinary care, the plaintiff should have been driving his horse and buggy at the west side of defendant's tracks at the time of the collision.

(12) If the plaintiff had been so driving, the collision would have been avoided.

(13) Want of ordinary care on the part of the plaintiff proximately contributed to the damages which he has sustained.”

It is contended that the answers to these questions are not supported by the evidence, should have been set aside, and a judgment for $6,500, the amount found by the jury, should have been rendered for the plaintiff.

[1][2] Where the evidence tends to prove negligence, but contradictory inferences may also logically be drawn therefrom, the question of negligence is for the jury. There was evidence that the plaintiff was familiar with the road and the operation of cars thereon; that the night was dark and rainy; that there was a wagon track and room for him to travel on the street out of the reach of passing cars and alongside of the railway tracks. There were two railway tracks in the street, and he, going south, drove on the west track--that used by cars going south, which would necessarily come up behind him; also that he continued on this railway track for several hundred feet; and that the approaching car made considerable noise. The night was so dark that he could not see where the tracks were, but he had shortly before the accident turned out to let another car pass him. This presented sufficient evidence upon which the jury might base a finding of contributory negligence on the part of the plaintiff.

[3][4] The thirteenth question submitted is faulty, and cannot be approved. The proper question is whether the plaintiff's want of care proximately contributed to the injury, not to the damages. But the third, eleventh, and twelfth findings above mentioned cover the question of contributory negligence, even without any aid from the thirteenth finding. Under such showing, we cannot undertake to reverse the rulings of the court, refusing to change the answers of the jury to the questions finding the plaintiff guilty of contributory negligence; and hence the motion for judgment in favor of the plaintiff was properly denied.

Various errors are assigned in submitting certain questions of the special verdict to the jury, in refusing to submit others, in admitting and excluding evidence, in refusing and giving instructions to the jury, all of which have been considered, but only the following need be discussed.

[5] The court instructed the jury that it was the duty of the motorman, in the exercise of ordinary care, to keep a proper lookout as to the tracks and streets upon which he is operating the car, so as to avoid collision with persons and vehicles upon the street; that the street car at the time of the accident was entitled to precedence in the use of the portion of the street upon which its tracks were constructed, and the motorman had the right to assume the ordinary traveler upon the highway would yield to the passage of the car; that he was entitled to indulge in such presumption, until the contrary became apparent to a person exercising ordinary care under the same or similar circumstances. Instructing the jury, relative to the thirteenth finding, the court added: “Now, gentlemen of the jury, not to be misled on that, you will have in mind what I have heretofore said to you with reference to the relative duties of the parties, the relative rights or relative duties of the parties, upon this public highway. Always have that in mind when considering these questions that bear upon this proposition.” The jury after deliberating several hours returned to the courtroom, and requested the reading of that part of the charge with reference to the right the motorman had to assume that his track was clear, and the portions of the charge above referred to were read.

The appellant contends that the instructions were erroneous, under the rule of Lauson v. Fond du Lac, 141 Wis. 57, 123 N. W. 629, 135 Am. St. Rep. 30, and that there should have been added a statement to the...