Gould v. Merrill Ry. & Lighting Co.

• Decision Date: 11 May 1909
• Citation: 121 N.W. 161,139 Wis. 433
• Court: Wisconsin Supreme Court
• Parties: GOULD ET AL. v. MERRILL RY. & LIGHTING CO.

139 Wis. 433

121 N.W. 161

GOULD ET AL.

v.MERRILL RY. & LIGHTING CO.

Supreme Court of Wisconsin.

May 11, 1909.

Appeal from Superior Court, Lincoln County; Almon A. Helms, Judge.

Action by E. N. Gould and others against the Merrill Railway & Lighting Company. From a judgment for plaintiffs, defendant appeals. Affirmed.

Among other references upon the part of the appellant were the following: Rideout v. Winnebago T. Co., 123 Wis. 297, 101 N. W. 672, 69 L. R. A. 601;O'Brien v. C., St. P., etc., Ry. Co., 102 Wis. 628, 78 N. W. 1084;Cawley v. La Crosse, etc., Co., 101 Wis. 145, 77 N. W. 179;Walters v. Railway Co., 104 Wis. 251, 80 N. W. 451;Collins v. Janesville, 117 Wis. 415, 94 N. W. 309; Weed, etc., Co. v. Whitcomb, 101 Wis. 226, 77 N. W. 175;Whereatt v. Worth, 108 Wis. 291, 84 N. W. 441, 81 Am. St. Rep. 899;Duthie v. Washburn, 87 Wis. 231, 58 N. W. 380.

Among other references upon the part of the respondents were the following: Van Salvellergh v. Green Bay, etc., Co., 132 Wis. 166, 111 N. W. 1120;Eastwood v. La Crosse, etc., Co., 94 Wis. 163, 68 N. W. 651;Fay v. Minneapolis, etc., Co., 131 Wis. 639, 111 N. W. 683; White's Supp. to Thompson, Neg. § 1420; Nolan v. Kroening, 130 Wis. 79, 109 N. W. 963;Bohn v. Racine, 119 Wis. 341, 96 N. W. 813; 1 Sutherland, Dam. § 57; 4 Sutherland, Dam. § 1101; Dunn v. State, 125 Wis. 181, 102 N. W. 935;Palmer v. Schulz (Wis.) 120 N. W. 348;Hill v. Durand, 58 Wis. 160, 15 N. W. 390;Woodruff v. Depere, 60 Wis. 128, 18 N. W. 761;Bonesteel v. Orvis, 31 Wis. 117;Lam Yee v. State, 132 Wis. 527, 112 N. W. 425;Sweain v. Donahue, 105 Wis. 142, 81 N. W. 119.F. J. Smith and John Van Hecke (B. R. Goggins, of counsel), for appellant.

Smart & Curtis, for respondents.

TIMLIN, J.

The plaintiffs in this action, founded upon alleged negligence of defendant, had a special verdict finding the motorman in charge of defendant's car negligent; that this negligence was the proximate cause of the injury to plaintiffs' horses, wagons, and harness; that the plaintiffs were free from contributory negligence, and their damages were $450. Considering the commonplace nature of the action and the amount involved, the litigation seems to have been conducted with such zeal, industry, and pugnacity from the selection of the jury to the final taxation of costs as to present an unusual number of disconnected questions, necessitating to cover these questions an opinion of some length. We shall be obliged to rule upon some of them without discussion.

1. Drawing the jury for the trial of the cause, as provided for in chapter 295, p. 446, Laws 1905, as amended by chapter 272, p. 912, Laws 1907, after the commencement of the action and after issue joined, but before filing the summons or complaint, was, to say the least, not error of which appellant after having participated in the selection of that jury can complain. We are inclined to the opinion that the fact of an action pending and at issue gives the right to demand and obtain in the manner provided by these statutes the jury there mentioned, and that these objections, including the objection that the notice of trial did not fix any time for the hearing while the venire fixed a definite time for the return of the jurors, are technical and unsubstantial.

2. Error is assigned because of the refusal of the trial court to discharge the jury and grant a venire de novo upon the ground that the trial commenced on April 29, 1908, and was interrupted by several adjournments necessitated by the illness and death of the wife of the presiding judge, and was not finally concluded until June 6, 1908, although only six days of this time was spent in actual trial. It is said that during these adjournments the jurors had opportunity to see, and did frequently see, the street in question and points therein mentioned by the witnesses, but no actual misconduct on the part of the jury is charged. There was in this no error prejudicial to appellant.

3. The complaint averred that plaintiffs were copartners and owners of two certain horse teams with wagons and harness, the defendant a corporation operating a street railway on West Main street and elsewhere in the city of Merrill, and, while the plaintiffs were lawfully traveling with said teams and wagons westwardly on West Main street, the motorman of defendant in charge and control of an electric street railway car also moving westwardly in said street approached the teams from the rear, and “negligently, carelessly, unnecessarily, repeatedly, and continuously sounded the gong on said car in a loud and noisy manner,” causing the rear team to become frightened. The motorman saw that the team was frightened, and knew that, unless he desisted from rapid approach and from sounding of the gong, he would cause the team to get from the control of the driver and do serious damage, but notwithstanding “carelessly and negligently continued to sound said gong and make a loud noise, and negligently and carelessly failed to stop or to slow up or place the car under control, but negligently, carelessly, and noisily ran the said car along behind the said team, and caused the same to become further and more excited and to start to run,” etc., so that the teams both ran away, and were injured to plaintiffs' damage as stated. It is contended that this complaint is based upona charge of gross negligence, hence the trial court erred (1) in not so construing it; (2) in overruling the objections to the reception of evidence of negligence; (3) in not granting a motion for a nonsuit; (4) in not granting defendant's motion for a directed verdict; (5) in not correcting the verdict and rendering judgment in favor of the defendant on the verdict as corrected. But all these alleged errors disappear if the complaint merely charged ordinary negligence. We find no charge of gross negligence in the complaint. All the acts of the motorman complained of are charged to have been done “negligently, carelessly,” etc., not intentionally. True, it is averred that the motorman knew the probable consequence of approaching rapidly ringing his gong, but that is not enough under the rule relative to gross negligence adopted by this court. Nothing is more common in ordinary negligence cases than to submit a question to the jury asking whether the defendant knew the consequences of his act. The disposition has been to err in such case by including in one question whether the defendant knew or ought in the exercise of ordinary care to have known these consequences. Du Cate v. Brighton, 133 Wis. 628, 114 N. W. 103;Howard v. Beldenville L. Co., 134 Wis. 644, 114 N. W. 1114. But, to constitute gross negligence, the act or omission causing the injury must itself have been wanton or willful. Wilson v. Chippewa V. E. R. Co., 135 Wis. 18, 114 N. W. 462, 115 N. W. 330. Illustration: The consequence of ringing the bell may be to frighten one team, but it may be required at the place by law or at the same time necessary to warn another. This group of alleged errors is therefore not effective for reversal.

4. Appellant next contends that, assuming the complaint to state a cause of action for ordinary negligence, there was no evidence to support the finding of the jury that defendant was guilty of negligence which was the proximate cause of the injury complained of, hence that there was error in denying a nonsuit, in denying a motion to direct a verdict for defendant, in denying a motion to change the answers of the jury affirming its negligence and affirming proximate causation, to negative answers, and in denying certain requested instructions drafted with this view of the case. There is an unusual, and it would almost seem an unnecessary, difference between counsel with respect to the facts proven. This difference has materially increased the labor of this court, and required a very close and critical examination of the facts in detail.

Summed up, these facts are as follows: In the city of Merrill, Genesee street, 50 feet in width and running north and south, crosses West Main street, 60 feet in width, and running east and west, and this crossing we take for a starting point. All points referred to, all acts of negligence, and all injuries in question occurred in West Main street west of this point and while the car in question and plaintiffs' teams were traveling west on West Main street. At this point there is on the northeast corner Wenzel's hardware store variously referred to by witnesses, on the northwest corner Farkvam's saloon or hotel, a like point. Next to this on the west is Haase's, a like point. One hundred and thirty feet west from the west boundary of Genesee street is the east boundary of Wright street which coming in from the north connects at right angles with, but does not cross, West Main street. Thirty feet further west along West Main street is the west boundary of Wright street, and here at the northwest corner of these two streets is a building referred to by the different witnesses as the Commercial Hotel, Thatcher's Hotel, and Tremont House. One hundred and ninety-two feet west of the west line of Wright street brings us to the east line of Juve's house, and a few feet farther west to a point nearly in front of White's house where the car overtook and passed the teams, and where one of the horses of the rearmost team jumped onto the rear bolster of the forward wagon, and became entangled in a chain strung between the bolster stakes. Witnesses designate the same place or point by different names, variously estimate time and distances and relative positions, and this presents some apparent confusion and much contradiction in the testimony. But the testimony fairly warrants the conclusion that the driver of the rearmost team had heard the gong and the gong was rung at the above-mentioned point of beginning, although there are some loose statements which might create an impression that this occurred 50 feet further back or at the other boundary of...