Fisher v. Waupaca Elec. Light & Ry. Co.

• Decision Date: 19 February 1910
• Citation: 124 N.W. 1005,141 Wis. 515
• Court: Wisconsin Supreme Court
• Parties: FISHER v. WAUPACA ELECTRIC LIGHT & RY. CO.

141 Wis. 515

124 N.W. 1005

FISHER

v.WAUPACA ELECTRIC LIGHT & RY. CO.

Supreme Court of Wisconsin.

Feb. 1, 1910.

Dissenting Opinion Feb. 19, 1910.

Appeal from Circuit Court, Waupaca County; Charles M. Webb, Judge.

Action by J. F. Fisher, administrator of Janet W. Fisher, deceased, against the Waupaca Electric Light & Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

This action was brought by J. F. Fisher, administrator of the estate of Janet W. Fisher, deceased, against the defendant to recover damages for the death of Janet W. Fisher, caused by appellant's negligence in equipping and operating its cars on its electric railway. The case was submitted to the jury on a general verdict, and the jury found in favor of the plaintiff, and assessed his damages at $3,500. The defendant owns and operates an electric railroad extending from the Wisconsin Central Depot in the city of Waupaca to the Grand View Hotel on the Chain of Lakes west of Waupaca city; the length of the road being a little less than five miles. The road extends through the town of Farmington in Waupaca county. On the 16th day of April, 1908, in the afternoon, in the town of Farmington, and 80 rods west of the city limits of Waupaca, Mrs. Fisher was killed, and her death is claimed by plaintiff to have been caused by being run over by a car on the defendant's road going westward at the point in question. The deceased and her sister-in-law, Mrs. Wolcott, were riding in a single rig or buckboard going toward the city of Waupaca, when the horse became unmanageable at the approach of the car, and suddenly turned around, throwing Mrs. Fisher out upon the car track in front of the approaching car, which passed over her. The litigated questions in the case were whether the defendant was guilty of any negligence which was the proximate cause of the injury, and the amount of damages. A motion to direct a verdict for the defendant was denied, and the usual motions after verdict were made and overruled, and due exceptions taken, and judgment entered on the verdict in favor of the plaintiff, from which this appeal was taken.

Winslow, C. J., and Marshall, J., dissenting.

C. H. Hamilton and B. B. Park, for appellant.

Gill, Barry & Mahoney, for respondent.

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

Error is assigned because the court refused to direct a verdict in favor of the defendant, for the reason that neither negligence nor proximate cause had been shown upon the undisputed evidence. This contention is based upon the claim that the death of Mrs. Fisher resulted from an unavoidable accident, even if she were killed by the defendant's car, and further that it does not appear from the evidence that she was killed by the car, but by being thrown from the buckboard in which she was riding. The questions involved under this head are purely questions of fact. Without going into any extended discussion of the evidence we will refer briefly to some of the leading facts which the evidence tends to prove.

The evidence shows that upon the day in question the deceased, without negligence on her part, or on the part of the driver, Mrs. Wolcott, was thrown from a buckboard in which she was riding upon the street car track in front of an approaching car, run over, and killed. That the car was being operated by a boy 17 years of age at a salary of $25 per month, who prior to the accident had had very little experience as motorman, and did not use all the means at hand necessary to stop the car as quickly as it might have been stopped before running over the deceased. That the track was straight and level, and the horse seen at a distance of 500 or 600 feet, and when the car was within between 200 and 250 feet from the horse, it reared up and acted frightened, and the motorman realized the danger. The horse reared up a second time immediately after the first, turned quickly around toward the track, overturning the buckboard, throwing deceased upon the track some 20 to 25 feet ahead of the car which had been moving at the time the horse first reared up at from 12 to 20 miles an hour. That deceased fell with her breast upon the rail, head between the rails, and about 6 or 7 feet from the buckboard from which she was thrown and her feet about two feet from the buckboard. The car passed over the body, and stopped between 30 and 40 feet from it. Immediately thereafter deceased made movements of the lips and sounds as though endeavoring to speak. Upon examination it was found that the neck was broken, the back broken in two places, and one arm broken. The car was equipped with a hand brake, a controller lever to regulate the current, and reverse lever to change the gear and machinery. In order to make an emergency stop the current must be shut off, the machinery reversed, the current again applied, and the hand brake used. Under the circumstances the car could have been stopped, upon the appearance of the danger, in 40 to 50 feet. The motorman understood the appliances, but failed to use the reverse lever or current, relying upon the use of the hand brake. The ordinance or franchise under which the defendant operated provides: “Section 22. Employés of said street railway shall use all proper and reasonable care and diligence to prevent any injury to persons and property, and on the appearance of danger to any one on or near the track the cars shall be stopped when by so doing injury may be avoided, or when teams become so frightened as to be liable to become unmanageable by their drivers.”

The car was not provided with a fender, although fenders had been in use many years prior to the time of the injury and since. A physician who examined the body shortly after the injury testified that death was instantaneous, and might have been caused by the fall from the buckboard, or by the passage of the car over deceased, and further says that there were very few and slight bruises, and practically no external marks; that the neck might have been broken by the violent rotation of the head. There is also some evidence tending to show that the current was not shut off at all, but that the motorman stopped the car by the use of the hand brake, and that immediately after the accident he exclaimed, “If I had only thought to turn off the controller.” The evidence further shows that the horse reared up twice; there could not have been half a minute between the time he reared first and last; he fell close to the track at or about the time the occupants fell from the buckboard, which was cramped on a forward wheel, causing it to tip over. The most approved plan of construction of defendant's street car required a fender to pick up objects in danger of being run over by the car. The fenders put on defendant's cars after the injury, and which were on at the time of trial, were an inch or inch and a half above the rail.

The foregoing is the substance of some of the material evidence produced upon the trial bearing upon the error assigned on refusal to direct a verdict. Now upon the facts in evidence the main questions were: Was there sufficient evidence to warrant the jury in finding that the motorman was negligent in failing to stop the car before it came in contact with the deceased, and was deceased killed by the car? It is insisted by appellant that without the evidence of a witness, Woodnorth, there is not sufficient evidence to support the verdict, and that his evidence is incredible. Woodnorth was not impeached. He appeared to be a man of education, good standing, and disinterested, and was in position to see and observe what occurred. Moreover, his evidence, while it does not coincide exactly with that of the witness Smith as to the distance from the horse to the car at the time the horse reared up, corroborated his evidence in many respects. Smith testified, in substance: That he was on the car, and saw the horse and two ladies in the conveyance coming when 250 to 300 feet away. That he turned his face in response to a friend who spoke to him, and when he turned back he saw the horse rear, turn half across the road, and jump and continue to jump, and the next jump he made he turned the buggy over. That his attention after he first saw the horse was diverted just for a second, and when he next looked at the horse he was 25 feet from the track, and the car was probably 100 feet from deceased. He felt the brake being set, and that was what called his attention to look at his friend. He felt the jar; he felt the brake before he saw the horse in the air. So it will be seen that this evidence, properly considered with due allowance for slight variance as to distance and time between first sight of the horse and the accident, corroborated Woodnorth. It is quite apparent that the motorman saw the horse rear, and apprehended the danger, when more than 100 feet from him, even upon the evidence of Smith, and this rearing was doubtless the second time. Even on this evidence the jury would have been justified in finding that due diligence was not used by the motorman, because there is credible evidence that the car could have been stopped by the proper use of the appliance within a distance of 75 feet or less when going at 15 miles per hour, and there is evidence that it was going slower, and the car more than 100 feet away, when the horse was rearing and plunging toward the track. Moreover, the car ran from 30 to 40 feet after striking deceased, which according to Smith's evidence would make a run of at least 130 or 140 feet after the horse reared and jumped toward the car, while the car could have been stopped by proper management within 65 or 75 feet.

There is also the question of whether the car was constructed upon the most approved plan in consequence of the lack of a fender; and, while chapter 390, Laws 1907, providing for use of fenders, did not go into effect until after the injury in this case, it was passed before, and made manifest at once...