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

• Decision Date: 16 February 1909
• Citation: 138 Wis. 44,119 N.W. 833
• Court: Wisconsin Supreme Court
• Parties: GRIMM v. MILWAUKEE ELECTRIC RY. & LIGHT CO.

138 Wis. 44

119 N.W. 833

GRIMM

v.MILWAUKEE ELECTRIC RY. & LIGHT CO.

Supreme Court of Wisconsin.

Feb. 16, 1909.

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

Action by Anton Grimm against the Milwaukee Electric Railway & Light Company. From a judgment of dismissal, plaintiff appeals. Reversed, and remanded for a new trial.

This action is brought to recover damages for injury to person and to property. The plaintiff was the owner of a laundry sleigh and horse, and at about 5:30 o'clock p. m., of February 8, 1907, delivered laundry to a building located on the west side of Third street, and about midway between Locust street on the north and Hadley street on the south. Third street is one of the principal business streets of the city of Milwaukee, and a double track street car line is operated thereon. While making the delivery the plaintiff's horse faced north, and stood adjacent to the curbing on the west side of the street. After the laundry was delivered, the plaintiff picked up the weight to which a line had been attached for the purpose of holding the horse, placed the weight in the sleigh, and stepped into the seat. While doing so, and before starting the horse, he looked to the north, and observed a south-bound street car approaching him, which, according to his calculation, was about 900 feet distant at the time. He immediately started to turn his horse around so as to proceed homeward. In making the turn it appeared that the front feet of the horse extended a little beyond the east rail of the south-bound track. The runners of the sleigh were carried over one, if not both, of the rails of the same track. Before the turn was completed, so that the sleigh would clear the passing car, the collision occurred which resulted in the injury and damage complained of. The sleigh was completely inclosed, having a vestibule in the front and a glass door in the rear. It also appears that there was a glass in the front of the vestibule, but whether or not it extended to the sides thereof does not appear from the testimony. The plaintiff testified that it would require less time than half a minute to make the turn. He also testified that, when he looked north and saw the car approaching, he also saw some people at the southwest corner of Third and Locust streets, apparently waiting to take the approaching car. The car did not stop there, however, and there is testimony tending to show that no warning was given immediately before the collision, and that the motorman did not make any attempt to lessen the speed of the car until it was too late to avoid the collision; furthermore, that there was nothing to obstruct the motorman's view of the plaintiff's vehicle. There was also some testimony tending to show that the car in question was proceeding at about twice the ordinary rate of speed. At the close of the plaintiff's evidence the court granted a nonsuit, on the ground that the plaintiff should have looked again in the direction of the approaching car, before entering upon the tracks, to ascertain whether it was safe to attempt to make the turn. Judgment was entered dismissing the complaint, from which judgment this appeal is taken. The error assigned is the ruling of the court in granting a nonsuit.Houghton & Neelen, for appellant.

Clarke M. Rosecrantz, for respondent.

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

The evidence fails to disclose the width of the street or the distance between the curb and the south-bound track. It is in many respects unsatisfactory, apparently because the witnesses were unable to express themselves understandingly. There is evidence from which the jury might have found that when the plaintiff took his seat in the sleigh and lifted in the weight to which the horse had been hitched, he looked north and saw a car approaching him, and about 900 feet distant, with an intervening street, upon the corner of which several people were standing, apparently for the purpose of taking the car; that plaintiff immediately started to turn around, but did not look again; that after partially making the turn, his back would be toward the approaching car and his vision otherwise obstructed; that in making the turn the front feet of the horse extended just beyond the east rail of the south-bound track; that the length of time that would be consumed in making the turn and clearing the track would not exceed half a minute, and might be somewhat less; that the car was running at an excessive rate of speed; and that the motorman failed to use reasonable precaution to prevent the collision. There was also some testimony in the case which tended to show that the car was somewhat further away from the plaintiff than he thought it was when he looked.

The question is, Do the facts stated present so clear a case of want of ordinary care on the part of the plaintiff as to warrant a trial court in saying that there was no question for the jury to pass upon in that regard? There is no evidence in the case tending to show that plaintiff was mistaken in estimating that the car was at least 900 feet away from him when he looked. His statement of the time it would take him to turn around so as to clear the track is an estimate, but does not appear to be an unreasonable one. If he only proceeded at the rate of 2 miles an hour, he would travel 88 feet in half a minute. It would seem that this was a greater distance than it was necessary for him to traverse in order to turn his vehicle and clear the track. Here again we find great uncertainty in the testimony as to the distance his horse in fact did travel, or the speed at which it traveled, before the collision. The speed of the approaching car would have to slightly exceed 20 miles per hour in order to travel 900 feet in one-half a minute. There is also a lack of testimony as to the usual and customary speed of cars in the outskirts of the city, and plaintiff does not give us the benefit of any knowledge or experience he may have had upon the subject. The lack of evidence on certain points enumerated, however, does not materially assist the contention of respondent. Unless there is enough in the testimony to enable a court to say, as a matter of law, that the plaintiff was guilty of contributory negligence, the nonsuit should not have been granted on that ground.

If plaintiff did not exercise ordinary care, it must be, as far as the testimony now before us discloses, because he failed to look again at the approaching car before driving his horse upon the tracks, or because he attempted to make the turn after observing that the car was but 900 feet from him. There is nothing to show, directly at...