Evanich v. Milwaukee Elec. Ry. & Light Co.
| Decision Date | 11 March 1941 |
| Citation | 295 N.W. 44,237 Wis. 111 |
| Parties | EVANICH v. MILWAUKEE ELECTRIC RY. & LIGHT CO. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from a judgment of the Circuit Court for Milwaukee County; Otto H. Breidenbach, Judge.
Reversed.
Action begun July 15, 1938, by Mary Evanich against The Milwaukee Electric Railway and Light Company, for the death of her husband. From a judgment in favor of the plaintiff, defendant appeals.
John Evanich, husband of the plaintiff, was killed at about 11:30 in the morning of June, 19, 1938, a clear day, when he attempted to pass in front of a streetcar of the defendant at the corner of West National Avenue and South 38th Street in the city of Milwaukee. The jury found the motorman causally negligent as to lookout, speed, and control of the streetcar, and the deceased causally negligent for entering on the track in front of the approaching streetcar. It found the deceased's negligence 20 per cent. and the defendant's negligence 80 per cent. Judgment was entered on the verdict.
The deceased had just left his brother's tavern on the northwest corner of the intersection. He had walked west across South 38th Street and was proceeding south along the west crosswalk when he was struck by an eastbound streetcar. West National Avenue runs in a general easterly-westerly direction. South 38th Street enters that avenue from the north at a point approximately 60 feet east of the point where it leaves that avenue at the south, so that there is a jog in that street as it crosses the avenue. Between the two points on West National Avenue a safety island is located south of the eastbound track. Ostensibly the deceased was trying to catch the streetcar to ride to his home east of that point when the accident occurred.
Witnesses testify that he was waving his hand as though to stop the streetcar. The motorman admitted he did not see the deceased until he was about two feet in front of the car, and claimed it was due to the fact that four cars were proceeding west on the north side of the avenue and that deceased stepped from behind the last of those cars. The motorman had slowed down to about 15 miles an hour at the first leg of the crossing, but speeded up so that he was traveling 25 miles an hour at the time he struck the deceased. Upon seeing the deceased the motorman applied the emergency brakes and stopped 123 feet east of the point of impact. The deceased was hurtled about 53 feet.
Appellant assigns as error the denial of its motion for a directed verdict and the denial of its motions after verdict on the ground that, as a matter of law, the deceased's negligence was equal to or greater than any negligence attributable to the defendant.For the respondent it was argued that a comparison of the negligence of each was a jury issue, and that the verdict should not be disturbed.
Shaw, Muskat & Paulsen, of Milwaukee, for appellant.
Seher & Seher, of Milwaukee, for respondent.
In attempting to cross West National Avenue to a safety island at South 38th Street, the plaintiff's deceased was struck by a streetcar and killed. He was intending to become a passenger on the eastbound car. As he left the north curb of West National Avenue he signalled to the motorman who was then some 200 feet away from the place of collision. The evidence is that the car was traveling at a speed which would indicate there was to be no stop at the point where the deceased apparently was desirous of boarding the car. There is testimony that the car did pick up a passenger at 44th Street, which was six blocks west of the scene of the accident, but that that was the last stop until after the accident. The car did slow up as it approached the place where South 38th Street comes into West National Avenue from the south, but its speed was immediately increased as it crossed this portion of South 38th Street. The deceased having started from a point where the street enters the avenue from the north was struck before he completely crossed the space between the rails of the eastbound track.
[1] There is evidence that the motorman failed to keep a proper lookout. The jury found the deceased guilty of negligence with respect to entering upon the track ahead of the approaching car. But in comparing the negligence of the motorman with that of the deceased the jury fixed the percentages at 20 for the deceased and 80 for the motorman. Can it be possible that such a difference existed? The deceased was a pedestrian who had a view of the car. Under the evidence accepted by the jury as controlling, it is apparent that the negligence of the deceased and that of the motorman were so like each other in kind and character or so nearly equivalent as to be comparable as a matter of law. McGuiggan v. Hiller Brothers, 209 Wis. 402, 245 N.W. 97;Brown v. Haertel 210 Wis. 345, 244 N.W. 630;Callaway v. Kryzen, 228 Wis. 53, 279 N.W. 702. There is no question of the negligence of each of the actors under the interpretation of the evidence by the jury.
[2] Some acts have a quality of effectiveness which place them in a category as...
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