Coel v. Green Bay Traction Co.

• Decision Date: 14 November 1911
• Citation: 133 N.W. 23,147 Wis. 229
• Parties: COEL v. GREEN BAY TRACTION CO.
• Court: Wisconsin Supreme Court

147 Wis. 229

133 N.W. 23

COEL

v.GREEN BAY TRACTION CO.

Supreme Court of Wisconsin.

Nov. 14, 1911.

Appeal from Circuit Court, Brown County; Samuel D. Hastings, Judge.

Action by Charles J. Coel against the Green Bay Traction Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Action for personal injuries. The defendant maintained a double-track street railway upon South Broadway street, in the city of Green Bay, which runs north and south, and is intersected by West Mason street, at right angles; the latter running east and west. The intersection of these two streets is in the business portion of the city. The south-bound cars run on the west track and the north-bound on the east track. The depot of the Green Bay & Western Railway, and other roads, sometimes called the Junction Depot, is situated on West Mason street, half a block east of its intersection with South Broadway. Plaintiff boarded a south-bound car to go to the Junction Depot. At West Mason street, he got off, and was struck by a north-bound car while going east behind and beyond the south-bound car. The defendant's negligence was alleged to consist in failing to sound the gong or alarm on the north-bound car while approaching the crossing where the south-bound car was discharging passengers, and in running said north-bound car at an excessive rate of speed while approaching and passing the stationary car.

The jury found (1) that the bell of the car that struck plaintiff was not rung as it approached the south-bound car; (2) that the north-bound car was run at a dangerous rate of speed; (3) that the south-bound car had stopped before plaintiff got off from it; (4) that the motorman in charge of the north-bound car was negligent in the manner in which he handled the car; (5) that said negligence was the proximate cause of plaintiff's injury; (6) that no want of ordinary care on the part of the plaintiff contributed proximately to his injury; and (7) that he was damaged in the sum of $3,700. From a judgment in favor of plaintiff, entered on the special verdict, the defendant appealed.Greene, Fairchild, North & Parker, for appellant.

Minahan & Minahan, for respondent.

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

The defendant challenges every finding of the jury, except the one assessing damages. A brief statement of just how the injury occurred will aid in understanding the scope of such challenge. Plaintiff got off the south-bound car at West Mason street, as he claimed, and as the jury found, after it stopped. He then proceeded eastward behind the car, listening for an approaching car from the south on the east track. He heard no sound of gong or bell, so he concluded to go east far enough to look south beyond the car he had just alighted from to see if a north-bound car was coming. When he was about a foot west of the east rail of the west track (the one upon which the car he had alighted from was standing), and just as he was about ready to stop to look for a north-bound car, he stumbled with his right foot, took a long step with his left foot to save himself, and another with his right foot, and then was struck by the north-bound car, resulting in a fracture of his thigh bone about halfway between the hip and knee. The car did not run over him. It is quite certain that the bumper on the west side of the car struck him. The bumper is the extreme end of the body of the car, and consists of a piece of wood about six inches in thickness, the bottom of which is about 21 1/4 inches above the pavement. It projects a foot and a half beyond the fender. The clear space between two cars passing each other is 2 feet and 2 1/2 inches, and the distance between the inside of the west rail of the east track and the inside of the east rail of the west track is 5 feet 9 inches.

[1] Defendant, to sustain its claim that the evidence shows the gong was sounded, relies upon the rule that the testimony of its witnesses that it was sounded, being positive, outweighed that of the testimony of plaintiff's witnesses, which it claims was negative merely. Lambert, the motorman of the north-bound car, and Erdman, the conductor on the south-bound car, testified that the gong of the north-bound car, as it approached the crossing, was sounded. Opposed to this was the testimony of four witnesses on behalf of plaintiff. Miss Cronan, who was on Broadway near West Mason street, and who observed the accident, said she heard no gong sounded. Anton Jiore, a passenger on the same car with plaintiff, who alighted at the Mason street crossing and was less than 15 feet from plaintiff at the time he was struck, testified he heard no gong or bell ring. Martin Burke, a police officer in Green Bay for 11 years, was on the north-bound car, and saw the motorman set the brakes when the accident happened. He says he is positive that no gong was sounded, because as soon as the accident happened he remembered that fact; and the reason he remembered it was because he had been on a number of cars causing injury, and knew that the question of warning by bell or gong was an important one. He supposed the injury must have been caused by the other car, because no gong was sounded on the one he was on. His hearing was good, and his attention was not diverted. The plaintiff testified that he was listening for a north-bound car, because he knew one might be coming at any time, and that he heard no gong or bell. Conceding that the testimony of Miss Cronan and of Mr. Jiore is negative merely, the same cannot be said of that of Mr. Burke and of the plaintiff, especially that of the latter. Burke's mind dwelt upon the question of warning at the time of the accident. True it did not begin to do so until plaintiff had been struck, but it did before the car came to a stop. So it must be fairly said that the question of warning by bell or gong was present in his mind at the time of the injury, and that his testimony that none was sounded was not negative merely. The same is true to a greater extent of plaintiff's own testimony. He was listening for a bell or gong, because he realized that it was of the utmost importance for him to do so, as a car might be coming north at any time. He had nothing over his ears, his hearing was normal, and he was in a position to hear, and he listened and heard none. Under such circumstances, his testimony that no bell or gong was sounded rises above the level of mere negative testimony. Where the existence or nonexistence of a physical fact ascertainable by the senses is called to the attention of a witness at the time and place it is claimed to exist or not exist, and the witness is in a position to ascertain its nonexistence as readily as its existence, and he makes an observation to ascertain what the fact is, his testimony that it did not exist is not negative in the sense that it can be said as a matter of law that positive testimony outweighs it. Such testimony, opposed by testimony of its existence, raises an issue of fact for the jury. Van Salvellergh v. Green Bay T. Co., 132 Wis. 175, 111 N. W. 1120, and cases cited; Anderson v. Horlick's M. M. Co., 137 Wis. 569, 119 N. W. 342.

[2] Testimony can be said to be truly negative only when it tends to prove the nonexistence of a fact by reason of a mere failure to observe and remember its existence. If it asserts an observation as to its existence and a recollection of what that observation was, a denial of its existence based thereon is as much affirmative evidence as is an assertion that it did exist. Anderson v. Horlick's M. M. Co., 137 Wis. 569, 119 N. W. 342. The cases of Wickham v. C. & N. W. Ry. Co., 95 Wis. 23, 69 N. W. 982, and Ryan v. La Crosse Ry. Co., 108 Wis. 122, 83 N. W. 770, relied upon by defendant, are not in conflict with this rule. In each of those cases, the witnesses who testified they did not hear the warning were paying no attention to the fact as to whether or not it was given at the time the accident occurred. None of them remembered that a warning was given. That was as far as their testimony went.

[3][4] The jury found the north-bound car was run at a dangerous rate of speed as it passed the south-bound car. The defendant takes issue with this finding, not so much because the jury has found a higher rate of speed than the evidence warrants, but because they have denominated such speed dangerous. The undisputed testimony shows the car was going at least as fast as cars usually go in the middle of a block passing from one street to another. There is much evidence to show that it went faster; and it is an undisputed fact that if plaintiff was struck at the south crossing of West Mason street, as he claims, the car went a distance of 150 feet before it came to a stop; while if he was struck at or near the north crossing thereof, as claimed by defendant, the car passed him 120 feet before it was stopped. The motorman testified that he felt the car strike something, and that he then applied the brake. There was no snow on the ground, and there is no evidence that the rails were wet, or that the car was going downgrade, or that the brake was out of order. The motorman said the slack was out of the brake and the power off when he struck plaintiff. Under such conditions, the fact that it required 120 feet or more in which to stop the car is, in the absence of any other adequate explanation, indicative of a high rate of speed. But assuming that the car passed the south-bound one at a rate of speed no greater than is usual in the middle of a block--an assumption as favorable to the defendant as can possibly be indulged in under the evidence--cannot such a rate of speed be called dangerous under the circumstances? The intersection of Broadway and West Mason streets was in the business portion of the city, and the crossings were used, not only by the patrons of the defendant, but by the public generally. The motorman could see the south-bound car coming, and had reason to...