Giannopoulos v. Milwaukee Elec. Ry. & Transp. Co.

Decision Date16 June 1943
Citation10 N.W.2d 143,243 Wis. 416
CourtWisconsin Supreme Court
PartiesGIANNOPOULOS v. MILWAUKEE ELECTRIC RY. & TRANSPORT CO.

OPINION TEXT STARTS HERE

Appeal from a judgment of the Circuit Court for Milwaukee County; William F. Shaughnessy, Judge.

Reversed.

Action commenced December 1, 1939, by Harry Giannopoulos, plaintiff, against the Milwaukee Electric Railway & Transport Company, a corporation, defendant, to recover damages for personal injuries sustained by plaintiff through the alleged negligence of defendant's motorman on December 8, 1937, while plaintiff was boarding one of defendant's streetcars on the corner of north Edison and north Water streets in the city of Milwaukee.

The case was tried to the court and jury. At the close of the evidence the court directed a verdict for defendant. Judgment was entered May 19, 1942, dismissing plaintiff's complaint, and for costs. Plaintiff appeals. The material facts will be stated in the opinion.

Arlo McKinnon, of Milwaukee, for appellant.

Shaw, Muskat & Paulsen, of Milwaukee, for respondent.

MARTIN, Justice.

The evidence on the part of plaintiff is to the effect that on December 8, 1937, at about 8:30 a. m., plaintiff was waiting for a north-bound streetcar on the corner of north Edison and north Water streets in the city of Milwaukee; that there was snow and ice on the ground, the streets were slippery, and it was a cold day. When the streetcar arrived plaintiff walked from the curb out to the front door of the streetcar. The car was a so-called “one man” type, having only a motorman. There were two front doors. The one nearest the front was the “in” door; next to it was the “out” door. The in-door was operated automatically by the brake lever; the out-door was operated by hand. When the streetcar stopped the motorman opened only the in-door. Another man, an employee of the defendant company, was also waiting to board the streetcar. This man was immediately in front of plaintiff. When the in-door opened this man entered the car and stood on the front platform engaged in conversation with the motorman, standing between the motorman and plaintiff.

Plaintiff got on the bottom step of the in-door entrance, at first having both feet on the lower step. Then the man ahead, who had been talking to the motorman, moved further into the car, whereupon plaintiff put one foot on the platform in the act of getting inside the car. While plaintiff was in this position the motorman attempted to close the in-door, causing the front step to commence to raise. At the same time the car suddenly moved forward a foot or two, causing plaintiff to lose his balance and fall backward off the streetcar, landing on the top of his head in the street. When plaintiff fell he lay on his back in the street with his feet at the front step of the car, his head lying southeast toward the curb. At the time plaintiff was forty-eight years old and weighed two hundred thirty-five pounds.

The evidence on the part of the defendant is to the effect that the motorman saw plaintiff when plaintiff was half a block away; that he knew by plaintiff's signal that he intended to board the car; that the motorman ran the car slowly to wait for plaintiff to reach the corner where he would board the car; that he brought the car to a stop, opened the front in-door; that plaintiff left the curb at the corner and as he got about three or four feet from the streetcar he fell; that no part of plaintiff's body touched or struck the car when he fell.

The motorman testified that the front in-doorstep could not be raised when a person was standing with his weight on the step; that the mechanism of the car was such that the brakes were automatically set when the front in-door was open and that if the car was in perfect condition it could not be moved forward while the in-door was open. The motorman testified that the cold weather affected the door-closing mechanism; that the starting and stopping mechanism of the door and step worked all right before and after the accident.

Two traffic policemen testified in plaintiff's behalf that in the course of their duties they frequently had observed streetcars of the type of car in question move from a standing position at the corner into the street intersection for a considerable distance with the front in-door remaining partially open, and the front in-doorstep being only partially raised; that they saw this occur more frequently in cold weather.

The pleadings and the evidence present a very sharp issue as to where plaintiff was when he fell and what caused him to fall. The plaintiff's evidence as to his having fallen from the streetcar while boarding it was corroborated by five other witnesses.

The defense is, first, that plaintiff slipped and fell while walking from the street curb to the car; and secondly, that the accident could not have happened in the manner as testified to by plaintiff and his several witnesses. This latter contention is based on the claim that it was mechanically impossible for the motorman to raise the step of the streetcar with a weight of as much as fifty pounds on the step, and that it was mechanically impossible for the streetcar to move forward while the entrance door was open.

At the close of the testimony defendant moved for a directed verdict. After oral argument the court said:

“I am satisfied, gentlemen, that in this case the evidence requires the court to invoke the principle enunciated in the Chybowski case [Chybowski v. Bucyrus Co.], 127 Wis. [332, 106 N.W. 833, 7 L.R.A.,N.S., 357], and cases in this...

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2 cases
  • Blied v. Wis. Foundry & Mach. Co.
    • United States
    • Wisconsin Supreme Court
    • June 16, 1943
    ... ... Wisconsin Department of Taxation; Milwaukee Electric Railway & Light Company v. Wisconsin Department of Taxation), ... ...
  • Hill v. City of Milwaukee
    • United States
    • Wisconsin Court of Appeals
    • June 11, 1991
    ...omitted). It also applies where other evidence makes a plaintiff's theory preposterous. See Giannopoulos v. Milwaukee Elec. Ry. & Transp. Co., 243 Wis. 416, 420, 10 N.W.2d 143, 145 (1943).Hill also suggests that the trial court should have included the issue of Forney's negligence in the sp......

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