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

• Decision Date: 10 February 1920
• Court: Wisconsin Supreme Court
• Parties: DERING v. MILWAUKEE ELECTRIC RY. & LIGHT CO.

171 Wis. 8

176 N.W. 343

DERING

v.MILWAUKEE ELECTRIC RY. & LIGHT CO.

Supreme Court of Wisconsin.

Feb. 10, 1920.

Appeal from Circuit Court, Milwaukee County; Walter Schinz, Judge.

Action by C. Maxwell Dering against the Milwaukee Electric Railway & Light Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Action begun in the civil court to recover damages for injury to plaintiff's automobile sustained in a collision with defendant's street car at the intersection of West Water street and Wells street in the city of Milwaukee on the evening of October 9, 1917. Wells street runs east and west. West Water street runs in a northwesterly and southeasterly direction. Plaintiff was proceeding east on Wells street, and the car that struck him was running northwesterly on the east track on West Water street. There are also double street car tracks on Wells street intersecting those on West Water street. Each street is about 50 feet wide from curb to curb, and the car tracks are practically in the center of the street. According to plaintiff's testimony, he was hit at a point about 6 or 8 feet south of the south rail of the south track on Wells street where it crosses the east rail of the east track on West Water street. The defendant's testimony places the collision further north, some witnesses as far north as north of the north track on Wells street. When plaintiff first saw the car that hit him, it was standing on the south side of Wells street discharging passengers.

The jury found defendant negligent, its negligence the proximate cause of the injury and damages, but they also found plaintiff guilty of contributory negligence. The court entered judgment for defendant dismissing the action upon the merits. Upon plaintiff's appeal to the circuit court, a judgment of affirmance was entered, and from such judgment plaintiff appealed.Martin J. Brennan, of Milwaukee, for appellant.

Van Dyke, Shaw, Muskat & Van Dyke, of Milwaukee, for respondent.

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

[1] Plaintiff contends (a) that there is no evidence to sustain the jury's finding of contributory negligence, and (b) errors in instructions to the jury. From the foregoing statement of facts it will be seen that, even upon plaintiff's own contention, the car that hit him had run at least 15 feet from where it stood discharging passengers before it ran into him. In so doing the testimony shows it had run at an average speed of not more than 3 miles per hour. He testified that he ran his auto from 4 to 8 miles per hour and had it under...