Cawley v. La Crosse City Ry. Co.

• Decision Date: 01 November 1898
• Citation: 77 N.W. 179,101 Wis. 145
• Parties: CAWLEY v. LA CROSSE CITY RY. CO.
• Court: Wisconsin Supreme Court

101 Wis. 145

77 N.W. 179

CAWLEY

v.LA CROSSE CITY RY. CO.

Supreme Court of Wisconsin.

Nov. 1, 1898.

Syllabus by the Judge.

Plaintiff was traveling on the highway along defendant's street-railway track where she could have seen and heard a car approaching from behind, for several hundred feet, had she looked and listened for that purpose. She said she did look and listen but did not see or hear a car. She turned and drove onto the track for the purpose of passing a wood wagon that was going the same way she was. Before she got by the wood wagon, so as to turn to the right off the track in front of it, she was struck by a car and injured. After the accident the car stood about two car lengths from where it struck plaintiff's vehicle, and the wrecked vehicle was in the road behind the wood wagon. The motorman sounded his signal bell before and after plaintiff turned towards the track, and as soon as he observed she was going on the track he turned off the current, set the brakes and did all that he could to stop the car. Held:

1. That there is no room on the facts to say defendant was negligent; and that the evidence conclusively shows contributory negligence of the plaintiff.

2. That the rule of look and listen before going upon a railway track, whether steam or electric, is inflexible, and the nonobservance of it is negligence per se; that it is a rule of law,--not a rule of evidence permitting a jury to say that there was or was not negligence where the duty was not performed.

3. Where there is any credible evidence that, under any reasonable view of it will admit of an inference either for or against the plaintiff, the rule that the proper inference to be drawn is a question for the jury should be firmly adhered to, but when the evidence is not susceptible of reasonable conflicting inferences, the motion for a nonsuit or the direction of a verdict should be granted as a right of the moving party, and that implies a judicial duty on the part of the court to decide that way.

Appeal from circuit court, La Crosse county; O. B. Wyman, Judge.

Action by Jennie Cawley against the La Crosse City Railway Company to recover compensation for personal injuries alleged to have been caused by the negligence of defendant's employés. The negligence complained of was running an electric car at a rapid rate, without ringing any bell or giving any warning of its approach. At the close of plaintiff's case there was a motion for a nonsuit on the ground that the evidence in her behalf failed to show actionable negligence and did show that plaintiff carelessly placed herself in the place of danger where she was injured, by driving on the track when a rapidy approaching car, in plain sight and hearing, was in close proximity to her. The motion was denied. At the close of the evidence there was a motion by defendant's counsel for the direction of a verdict, which was denied. After verdict for the plaintiff there was a motion for a new trial on the same grounds urged in favor of the two previous motions, which was denied. All the rulings mentioned were duly excepted to. Judgment was rendered in plaintiff's favor on the verdict, and the defendant appealed. Reversed.Losey & Woodward, for appellant.

Ray S. Reid, for respondent.

MARSHALL, J. (after stating the facts).

The sole question involved on the various assignments of error which we deem necessary to consider is, was there evidence, under the most favorable view that can be reasonably taken of it, to warrant a verdict for the plaintiff? If there was not, and that situation was apparent at the close of plaintiff's case, the court erred in granting the motion for a nonsuit. If such was the situation at the close of the evidence on both sides, the motion for the direction of a verdict should have been granted, and the errors in denying the two previous motions of course were repeated in failing to set the verdict aside and grant a new trial.

The circumstances of the accident, as shown conclusively by the evidence, are substantially as follows: It occurred in the early part of the evening, a little after dark, on a railway track laid on a broad, level, raised street, not crossed by any other street for a distance of about 2,400 feet. On the east side of the street were two electric railway tracks, occupying some 12 feet in width. At a safe distance west of the tracks there was a macadamized roadway about 20 feet wide, specially fitted for public travel by vehicles, and east of that for a distance of some 50 feet the street was reasonably level and smooth so there was ample opportunity for teams to pass each other by night or day without driving on to the railway tracks. Plaintiff, while proceeding north, riding in a phaeton drawn by one horse, traveling on the macadamized roadway behind a heavy wood wagon, turned to the left and drove onto the railway track for the purpose of passing such wagon. The reason given for driving to the left instead of to the right was that plaintiff deemed the latter a little rough so that had she turned that way, the parcels she had in the phaeton were liable to fall out. She drove at quite a brisk trot as she turned to the left and drove onto the railway track. She had proceeded, in endeavoring to pass the wood wagon, but a short distance when she was run into by a car going in the same direction. That caused the injury. She said, she looked and listened for a car before driving onto the track, but did not see or hear any. The car was in perfect condition, being supplied with all the customary appliances, such as a brake, a suitable headlight and a signal bell. It was running at a lawful rate of speed and the motorman was at his post, keeping a sharp lookout ahead. As he approached the teams driving along at the right of the track, and before plaintiff turned towards the track, he sounded his signal bell. As soon as he observed the movement of the horse towards the track he sounded the bell, and immediately turned off the current and did all that was in his power by applying the brake, to stop the car. It nevertheless ran into the plaintiff's phaeton, throwing it off the track to the right, plaintiff at the same time falling out of the phaeton to the left. After the collision the car went about two or three car lengths and stopped. The wrecked phaeton was then found in the roadway behind the wood wagon.

We search in vain in the foregoing to find any support whatever for the charge of negligence contained in the complaint. In view of that, upon what theory the learned trial judge submitted the case to the jury we are unable readily to perceive. Without any evidence whatever to sustain the charge of negligence made in the complaint, but on the contrary, in the face of evidence showing that everything was done to guard against all dangers reasonably to have been apprehended respecting the personal safety of plaintiff as she was traveling on the road along the streetcar track, and to warn her off the track when she turned to the left, and to avoid injuring her after she entered upon the track, it was left to the jury to say whether defendant was culpably negligent or not, as if negligence under the circumstances were a disputed question of fact. The rule seems to have been overlooked that when the evidentiary facts are all undisputed and there is only room for one reasonable inference as to the ultimate fact in issue, it is for the court to draw the proper inference as a matter of law. There does not appear to be a scintilla of evidence tending to show negligence on the part of defendant. The only evidence in that regard, claimed by respondent's counsel, is that the motorman did not use reasonable diligence after he saw, or might have seen, the plaintiff turn towards the track. That is predicated solely on the theory that plaintiff's testimony shows, or tends to show, that she traveled the distance requisite to pass two or three teams before she was struck by the car. A careful examination of her evidence leads to the conclusion that the jury were not warranted in saying from it that plaintiff passed more than one team before the accident, while the undisputed fact in the case, that the wrecked phaeton was found immediately after the accident behind the wood wagon, shows that it must have been struck very soon after the horse turned in upon the track and before it had time to pass such wagon far enough to turn to the right ahead of it. It is easy to see how plaintiff...