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

• Decision Date: 15 November 1904
• Citation: 101 N.W. 384,123 Wis. 168
• Parties: GOLDMANN v. MILWAUKEE ELECTRIC RY. & LIGHT CO.
• Court: Wisconsin Supreme Court

123 Wis. 168

101 N.W. 384

GOLDMANN

v.MILWAUKEE ELECTRIC RY. & LIGHT CO.

Supreme Court of Wisconsin.

Nov. 15, 1904.

Appeal from Circuit Court, Milwaukee County; Orren T. Williams, Judge.

Action by A. A. Goldmann against the Milwaukee Electric Railway & Light Company. From a judgment for plaintiff, defendant appeals. Reversed.

The plaintiff, according to his own statement, was driving south on Sixth street, in Milwaukee, when he came to State street, on which were double tracks of the defendant's railway. As he reached a point where he was substantially on the north cross walk, and his horse's head some 15 feet north of the north railroad track, he stopped, and looked west, and saw no car; then looked east, and saw one about a block (389 feet) away, coming towards him very slowly. He started his horse at a speed of about two miles an hour to cross State street, without again looking for a car. When he had progressed so that his horse was upon the track, and his front wheels close to the north track, his little daughter cried out to look out for the car. He then looked, and saw it about half a block away, coming very rapidly. He urged his horse to greater speed, reaching a velocity of about three miles an hour, but before getting across was struck and injured. Upon the trial the jury found by special verdict that the defendant was guilty of negligence proximately causing the injury, and that plaintiff was not guilty of contributory negligence, and that it was consistent with due care, after first seeing the car, to have failed to ascertain thereafter that its speed and position were such as to render dangerous an attempt to cross in front of it. Defendant made several motions, and, amongst others, one to set aside and reverse the answers to these two questions relating to contributory negligence, and for judgment in its favor upon the verdict so amended. Its motion was denied, and judgment rendered for the plaintiff, from which the defendant appeals.Spooner & Rosecrantz, for appellant.

W. B. Rubin, for respondent.

DODGE, J. (after stating the facts).

This case falls so clearly within the principles announced in a long line of decisions, and so completely within the material facts of such cases as Nolan v. Railway Co., 91 Wis. 16, 64 N. W. 319;White v. Railway Co., 102 Wis. 489, 78 N. W. 585;Koester v. Railway Co., 106 Wis. 460, 82 N. W. 295, and Guhl v. Whitcomb, 109 Wis. 69, 85 N. W. 142, 83 Am. St. Rep. 889--that extended discussion, or even reiteration of the reasons controlling it, cannot be justified. Due care in approaching a railway track can be satisfied only by the full use of the senses of sight and hearing at the last moment of opportunity before passing the line between safety and peril. Schroeder v. Railway Co., 117 Wis. 33, 38, 93 N. W. 837. The last moment for such observation in the present case was just before plaintiff's horse stepped upon the track on which plaintiff knew a car was approaching, for the evidence was undisputed that the movement of the horse was so slow and so without momentum as to approximate the plaintiff almost exactly to the situation of a foot passenger, as to whom it is pointed out that the single step onto the track is negligence unless, before taking it, he assures...