Kausch v. Chi., Milwaukee Elec. Ry. Co.

• Decision Date: 10 January 1922
• Parties: KAUSCH v. CHICAGO, MILWAUKEE ELECTRIC RY. CO.
• Court: Wisconsin Supreme Court

176 Wis. 21

186 N.W. 257

KAUSCH

v.CHICAGO, MILWAUKEE ELECTRIC RY. CO.

Supreme Court of Wisconsin.

Jan. 10, 1922.

Appeal from Circuit Court, Milwaukee County; A. H. Reid, Judge.

Action by Charles Kausch against the Chicago, Milwaukee Electric Railway Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded for new trial.

This action was brought to recover damages for personal injuries, sustained by the plaintiff while he was attempting to board one of defendant's street cars in the city of Milwaukee. It was commenced in the civil court of Milwaukee county against the defendant railway company. Upon motion of the defendant railway company, the Robert A. Johnson Company was made a party defendant, and plaintiff's complaint set forth a cause of action against both companies. Judgment was rendered in the civil court against the railway company for $2,000, but the written judgment made no disposition of the case as to the Robert A. Johnson Company.

The railway company appealed from the judgment so rendered first to the circuit court and then to this court, where the judgment was reversed and the cause remanded for further proceedings according to law. 173 Wis. 220, 180 N. W. 808. Upon a new trial in the circuit court pursuant to such remittitur from this court, a verdict was rendered in favor of the plaintiff and against the railway company for $6,500, which was set aside and a new trial ordered. Upon such new trial, the jury returned a special verdict finding that on January 3, 1919, while the plaintiff was in the act of boarding one of defendant's street cars the car was suddenly moved forward from a state of rest; that such sudden moving of the car constituted an act of negligence on the part of defendant's employés; that such negligence of defendant's employés was the proximate cause of plaintiff's injury; that the plaintiff did not fail to use ordinary care for his own safety, and awarding damages in the sum of $6,000. Upon this verdict judgment was rendered in favor of the plaintiff and against the defendant in the sum of $6,000, from which judgment defendant brings this appeal.

The record discloses that the defendant operates an electric street railway on Grove street, which runs north and south, in the city of Milwaukee; that on the day in question the car stopped just before reaching the intersection of Lincoln avenue, for the purpose of taking on passengers; that a truck owned by Robert A. Johnson Company was parked between the curb and the street car track, standing at an angle of about 45 degrees in a northwesterly and southeasterly direction, leaving a space between the motor truck and the body of the street car of about 16 inches. The front end of the street car had passed the truck, but the rear end had not yet reached the truck. The plaintiff attempted to board the street car, and while he was gripping a tubing in the center of the vestibule, which served as a handhold, and had his left foot on the lower step, and before he had gripped the handhold with his right hand, or placed his right foot on the lower step, the street car was suddenly started, and before he could draw his body into the vestibule of the car, he came into contact with the truck, which brushed him from the car and threw him violently to the ground, inflicting the injuries complained of.Edgar L. Wood, of Milwaukee (A. L. Gardner, of Chicago, Ill., of counsel), for appellant.

Raymond J. Cannon, of Milwaukee (M. L. Lueck, of Port Washington, of counsel), for respondent.

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

[1][2] Before the introduction of any evidence defendant's counsel called the court's attention to the fact that, upon motion of appellant, the Robert A. Johnson Company had been brought in and made a party defendant in the civil court, and asked for a ruling as to whether that company was still a party to the action. While the written judgment made no disposition of the case as to that company, it appeared that the special verdict submitted to the jury at the trial in the civil court contained three questions affecting its liability, all of which were answered against the plaintiff. The attorney for appellant then made a motion after verdict to change those answers, which motion was denied by the trial court, and judgment was rendered upon the verdict in favor of the plaintiff and against appellant. From the judgment so entered the defendant appealed to the circuit court. The circuit court affirmed the judgment of the civil court, which upon appeal was reversed by this court. It seems that the circuit court, in considering the appeal from the civil court, gave no consideration to the judgment as it affected the Robert A. Johnson Company, and no question in that respect was raised when the case was here upon the former appeal. It evidently was assumed by all, in all proceedings prior to the last trial, that the Robert A. Johnson Company had been eliminated from the case. Although the written judgment entered in the civil court makes no disposition of the case as to the Robert A. Johnson Company it does appear from the record that the verdict of the jury was such as to entitle it to a judgment of dismissal. It is not necessary that the judgment should be in writing. The oral judgment of the court is sufficient. Wallis v. First National Bank of Racine, 155 Wis. 533, 145 N. W. 195;Wehr v. Gimbel Brothers, 161 Wis. 485, 154 N. W. 972. But whether there was such an oral judgment does not appear from the record before us, so that we are unable to determine whether any judgment was actually entered by the civil court dismissing the action as to the Robert A. Johnson Company. However, this is a question in which the appellant here is not interested. Bakula v. Schwab, 167 Wis. 546, 168 N. W. 378. The rights of appellant against the Robert A. Johnson Company are not affected by the disposition which the trial court made of plaintiff's cause of action against that company, and it is in no position to raise the question. Id. That is a question in which the plaintiff only is interested, and he seems to have abandoned the action as to the defendant Robert A. Johnson Company, if in fact no more effectual disposition has been made thereof.

[3][4] The defendant contends that judgment should have been directed in its favor because it was guilty of no negligence. The jury found upon sufficient evidence that the defendant's car suddenly moved forward from a state of rest while the plaintiff was in the act of boarding the car. Appellant argues that it was not the sudden starting of the car that caused the injury, but the proximity of the truck parked in the street, of which the conductor had no knowledge, and that, having no knowledge of the dangerous presence of the truck, he cannot be held to have anticipated that this accident might probably happen by reason of the starting of the car before plaintiff was safely aboard. It is likely true that the conductor did not know that the truck was in the street, and that he cannot be held to have reasonably anticipated that the plaintiff would suffer the particular accident and injury. But it is not necessary that he should anticipate a specific injury. It is sufficient that he should reasonably have anticipated that some injury might probably result. Coel v. C. B. T. Co., 147 Wis. 229, 238, 133 N. W. 23. The conductor was chargeable with knowledge that plaintiff was not safely aboard the car, and he should have anticipated that some injury might probably result to the plaintiff from the sudden starting of the car while plaintiff was in the act of boarding the same. This is sufficient to establish legal negligence on the part of the defendant.

[5] Nor can it be held, as argued by appellant, that the presence of the truck in the street was an intervening cause of the injury. It was rather a concurring cause. Even though the presence of the truck constituted negligence on the part of the owner, the injury would not have occurred had the conductor refrained from starting the car until the plaintiff was safely aboard.

[6] Error is assigned because the court did not charge the jury with reference to the burden of proof. The questions were so framed that the burden of proof was on the affirmative side in each instance. With reference to each question the jury were told that before they could return an affirmative answer they must be satisfied to a reasonable certainty by a consideration of all the evidence that the fact inquired about existed. If not so satisfied, they were directed to answer the question, “No.” This most effectually placed the...