Hinton v. Cream City R. Co.

• Citation: 27 N.W. 147,65 Wis. 323
• Parties: HINTON v. CREAM CITY R. CO.
• Decision Date: 23 February 1886
• Court: United States State Supreme Court of Wisconsin

65 Wis. 323

27 N.W. 147

HINTON

v.CREAM CITY R. CO.

Supreme Court of Wisconsin.

Filed February 23, 1886.

Appeal from county court, Milwaukee county.

The action is to recover damages for personal injuries suffered by the plaintiff through the alleged negligence of the defendant company. The defendant owns and operates a street railroad in the city of Milwaukee, which extends along Farwell avenue, south-west to Ogden street, and thence west on a descending grade, along the latter street across Marshall street, which extends north and south across Ogden street. On November 3, 1883, at about 7 o'clock in the evening, the plaintiff entered a car of the defendant on Farwell avenue intending to leave it at Marshall street. The car was stopped at the crossing on the west side of Marshall street, at which point passengers entered it. As soon as it had done so the plaintiff started to leave the car, and just as she stepped upon the platform outside the back door the driver loosened the brake, preparatory to starting the team, and the car lurched forward, throwing her violently to the ground. The thigh bone of one of her limbs was fractured, and her knee was severely injured. The limb will undoubtedly be crippled during her life by reason of the injuries she there received. These are the injuries of which she complains.

The car was provided with two signal bells over the driver's stand, to which were attached straps extending over the seats in the car on either side, within easy reach of passengers. The means of ingress to and egress from the car was a single step in the rear of the car, 3 1/2 feet long and 18 inches wide, located 11 inches below the car floor and the same distance from the ground. There was a railing at the rear of the car on each side the door, but none at the rear of the step.

The testimony and the rulings of the court are stated in the opinion. The jury returned a special and general verdict, as follows:

“(1) Did the plaintiff ring the bell, shortly before the car reached Marshall street, with the purpose of alighting from the car? Yes. (2) Did the plaintiff ring the bell shortly after the car came to a halt at Marshall street? Yes. (3) Did the plaintiff, while the car was standing still, rise from her seat to leave the car, and proceed toward the rear door of the car? Yes. (4) Did the driver suddenly start the car on a down grade while the plaintiff was in the act of leaving the car, and before she had alighted therefrom? Yes. (5) Was the plaintiff violently thrown to the ground by reason of the starting of the car, and did she sustain personal injuries by reason thereof? Yes. (6) Was the plaintiff while endeavoring to leave the car guilty of any negligence which contributed to produce the injury? No. (7) Was the defendant while starting such car, while the plaintiff was endeavoring to alight therefrom, in the exercise of ordinary care and diligence? No. (8) Did the plaintiff ring the bell when the car was half way between Astor street and Marshall street? Yes. (9) Did the plaintiff remain seated at Marshall street, after the car stopped, before arising to leave, and before others got into the car? Yes. (10) Did the plaintiff have a reasonable time to leave the car at Marshall street before it started? No. (11) Did the driver stop the car at Marshall street so as to let passengers into the car? Yes. (12) Did the plaintiff ring the bell before attempting to leave the car? Yes. (13) Did the witnesses Kortsch and Zigourney attempt to restrain the plaintiff, by seizing her arms, from leaving the car, as testified? No. (14) Had the car then been already standing at Marshall street a time reasonably sufficient for her to leave it? No. (15) Was the car-driver guilty of any negligence which caused the injury to the plaintiff? Yes. (16) What damages has the plaintiff sustained by reason of the injury in question? $5,000. (17) Do you find for the plaintiff or for the defendant? For the plaintiff.”

A motion on behalf of the defendant for a new trial was denied by the court, and judgment was entered for the plaintiff pursuant to the verdict. The defendant appeals from the judgment.

Fish & Dodge, for respondent.

Winfield Smith, for appellant.

LYON, J.

The alleged errors assigned for a reversal of the judgment herein will be considered in their order.

1. Certain rulings of the court upon objections to testimony will first be disposed of:

(1) Col. E. A. Calkins was in the car when the plaintiff was injured, and his deposition, taken at the instance of the defendant, was read in evidence on the trial. On motion of plaintiff's counsel the court suppressed therefrom the following question propounded on behalf of the defendant: “Do you rememberanything about the length of the stop of the car at the corner of Marshall street, so as to give some idea of what it was?” The answer (also rejected) was: “My recollection is that it was a little longer than usual at street corners,” to which the witness added, “and a subject of remark among the passengers; it was a little tedious waiting so long at this corner.” The portion of the answer last quoted was irresponsive to the question, which did not call for the grounds of his recollection, and was incompetent testimony for the defendant. But the portion first quoted was responsive to the question, and material and relevant to the issue, and the question was a proper one. We do not understand why counsel objected thereto, or why the court should have suppressed the question, or the unobjectionable portion of the answer. But the witness was afterwards interrogated, concerning the time of the same stop, thus: “From your recollection was the length of the stop on that occasion greater or less than that usually required in order to enable passengers to get out of a car, and to step freely on the ground?” The witness answered this question substantially as he did the other, and the answer was allowed to stand. Elsewhere in his deposition the witness also stated that “the stoppage was for some little time,--as long as usually occurs at street corners, in my experience in that line, for passengers to get on board.” The witness having thus been allowed to testify fully on the subject, and such testimony having been retained in his deposition, the error in rejecting the first question and his answer thereto becomes immaterial.

(2) On his cross-examination, in answer to questions put by counsel for plaintiff, Col. Calkins testified to a conversation with Mr. Smith, president of the defendant company, concerning the accident, and what was said in that conversation. On his redirect examination Mr. Smith put this question: “I asked you if the bell was rung for the car to stop. Do you recollect whether you answered: ‘No, there was no bell rung?’ ” The witness answered: “I don't recollect that remark particularly, but I do recollect conveying to you the opinion that was in my mind.” The opinion referred to was not called for, although it may fairly be inferred from Col. Calkins' deposition that he thought the plaintiff did not ring the bell. An objection to the above question and answer was sustained. No objection having been taken to the form of the question, (which is leading), we do not perceive any good reason for suppressing it. But the answer substantially denies recollection that he told Mr. Smith no bell was rung; hence the testimony was of no benefit to the defendant, and the rejection of it could not have operated to its prejudice. It was maintained in the argument that the court must determine from the rejected interrogatories alone whether or not it was error to suppress them. This is doubtless a correct proposition. But having determined it was error to suppress them, we must look into the answers to determine whether such errors are material,--whether they could possibly have prejudiced the defendant. We conclude they could not have had that effect.

(3) The driver of the car which the plaintiff was leaving when she was injured was produced in behalf of the defendant as a witness. He testified, on his direct examination, that the ringing of the bell was a signal for the car to stop to allow a passenger to get off, and that sometimes passengers informed him orally where they desired to leave the car. He said, further: “In case that signal, [the ringing of the bell,] or any other signal, had been given to me that a passenger wished to get off, my duty would have been, and my practice, to know they were off,--to clear the car before I started the car.” Immediately thereafter the witness was asked these questions: “In the ordinary course of your duty and practice, what would you have done had you received such a notice?” “what is your duty and practice upon receiving such a notice?” The first question relates to a notice by ringing the bell, the other to personal notice. The court sustained an objection to each question. The rulings were correct for two reasons: (1) The witness had previously answered the question fully, and his testimony on that subject is uncontradicted. A repetition of it was useless. (2) The duty of the driver in the contingencies mentioned is a proposition of law; his practice was entirely irrelevant to the issues, as well as immaterial.

(4) One Zigourney was produced by the defendant, and gave testimony. On his cross-examination he was asked whether on a certain specified day, and in a certain cigar store in Milwaukee, he had a conversation with one E. B. Simpson relative to this case, and whether he made certain specified statements to Simpson in that conversation. The witness denied recollection of any such conversation. One Edward Simpson was afterwards called by plaintiff, and interrogated as to such conversation, for the purpose of impeaching the credibility of Zigourney. He testified that another man named E. B. Simpson lived in the city. The plaintiff was allowed, against objection, to propound to witness the question whether, at the...