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

• Decision Date: 03 February 1914
• Docket Number: No. 117.,117.
• Citation: 157 Wis. 107,146 N.W. 1133
• Court: Wisconsin Supreme Court
• Parties: KUCHLER v. MILWAUKEE ELECTRIC RY. & LIGHT CO.

157 Wis. 107

146 N.W. 1133

KUCHLER

v.MILWAUKEE ELECTRIC RY. & LIGHT CO.

No. 117.

Supreme Court of Wisconsin.

Feb. 3, 1914.

Appeal from Circuit Court, Milwaukee County; W. J. Turner, Judge.

Action by Anna Kuchler, as administratrix de bonis non of the estate of John Kuchler, deceased, against the Milwaukee Electric Railway & Light Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded, with directions.

This action was brought to recover damages occasioned by the death of a ten year old boy who was killed in a crossing accident at the intersection of Twelfth and Wells streets in the city of Milwaukee. At the time of the accident the boy was riding with his grandfather in a buggy going south on Twelfth street, and a west-bound street car on the defendant's north track on Wells street collided with the buggy. The accident occured at 5:30 p. m. May 31, 1907.

The complaint charges gross negligence on the part of the motorman in operating and managing the car. Death as the result of the collision was admitted and other allegations of the complaint denied. The jury returned the following verdict: “(1) While nearing and before reaching the crossing, did it appear to the motorman that in the absence of effort on his part a collision of his car with the horse and buggy was inevitable? Answer: Yes. (2) While nearing the crossing and before reaching the point of collision, did the motorman intentionally refrain from making any effort in good faith to slacken the speed of his car? Answer: Yes. (3) Was the death of deceased caused by wanton and willful conduct of the motorman indicating a conscious disregard of the safety of others? Answer: Yes. (4) If you answer either or both question 2 or 3, ‘Yes,’ then answer: Was such conduct the proximate cause of the death of the deceased? Answer: Yes. (5) What pecuniary loss was sustained by the parents of John Kuchler in consequence of his death? Answer: $4,052.80. (6) What part of the above sum represents the pecuniary loss sustained by the father of said deceased? Answer: $45.”

The usual motions were made by the defendant for an order changing the answers in the special verdict and for judgment upon the verdict as changed and for judgment in favor of the defendant upon the uncontradicted evidence and notwithstanding the verdict and for a new trial, all of which motions were denied. The court held the damages excessive and ordered that a new trial be granted unless the plaintiff within 20 days remitted from the verdict the sum of $2,052.80. Plaintiff remitted, and judgment was entered accordingly, from which this appeal was taken.

Van Dyke, Rosencrantz, Shaw & Van Dyke, of Milwaukee, for appellant.

W. B. Rubin and Rubin & Zabel, all of Milwaukee (Horace B. Walmsley, of Milwaukee, of counsel), for respondent.

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

[1] The main question presented here is whether there was sufficient evidence to carry the case to the jury on the issue of gross negligence of the motorman operating the car. Under the decisions of this court, in order to make a case of gross negligence it must appear that there was willful misconduct on the part of the motorman. His conduct must have been such as to suggest that he was wholly indifferent as to the safety of the occupants of the buggy, and was guilty of such wanton or reckless conduct as is deemed equivalent to an intent to injure. Haverlund v. Chicago, St. P., M. & O. R. Co., 143 Wis. 415, 128 N. W. 273;Bolin v. Chicago, St. P., M. & O. R. Co., 108 Wis. 333, 84 N. W. 446, 81 Am. St. Rep. 911;Fox v. Chicago, St. P., M. & O. R. Co., 147 Wis. 310, 133 N. W. 19;Raasch v. Milwaukee E. R. & L. Co., 151 Wis. 170, 138 N. W. 608;Willard v. Chicago & N. W. R. Co., 150 Wis. 239, 136 N. W. 646;Barlow v. Foster, 149 Wis. 613, 136 N. W. 822.

To constitute gross negligence the act or omission causing the injury must itself have been wanton or willful. Gould et al. v. Merrill R. & L. Co., 139 Wis. 433, 121 N. W. 161;Rideout et al. v. Winnebago T. Co., 123 Wis. 297, 101 N. W. 672, 69 L. R. A. 601;Schug v. Chicago, M. & St. P. R. Co., 102 Wis. 515, 78 N. W. 1090.

[2] At the time of the injury the defendant was operating a double-track street railway on Wells street from Eleventh street westward. Cars running north on Eleventh street entered a curve and swung westward on Wells street. The intersection of Eleventh and Wells streets is a transfer point. The accident occurred at the intersection of Twelfth and Wells streets, one block west from Eleventh street. The car which collided with the buggy in which deceased was riding came north on Eleventh street, turned west on Wells street, then continued west on the north track on Wells street. The deceased was riding with his grandfather in a buggy going south on Twelfth street. The horse was going on a slow trot as it reached Wells street, but slowed up or stopped on the crossing when about 20 feet from the north street car track on Wells street, then proceeded slowly, and, when about four or five feet from the track, the car which collided with the buggy was about 20 feet east of the place of collision. The horse and buggy proceeded onto the track immediately in front of the car, and the car struck the front wheel of the buggy. The horse was under perfect control of the driver. It appears from the undisputed evidence that deceased was...