Little v. Superior Rapid Transit Ry. Co.
| Decision Date | 23 October 1894 |
| Citation | 60 N.W. 705,88 Wis. 402 |
| Parties | LITTLE v. SUPERIOR RAPID TRANSIT RY. CO. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from superior court, Douglas county; Charles Smith, Judge.
Suit by Eliza A. Little against the Superior Rapid Transit Railway Company to recover for personal injuries sustained, as alleged, by negligence of defendant's servants. From a judgment for plaintiff, defendant appeals. Reversed.
This action was brought to recover damages for injuries received by the plaintiff, September 1, 1893, on North Third street, in West Superior, caused by a collision of one of the defendant's street cars, propelled by electricity, with a phaeton in which the plaintiff was riding, and which collision is alleged to have been caused by the defendant's negligence. The defendant answered by way of admissions and denials, and allegations of contributory negligence on the part of the plaintiff. At the close of the trial the jury returned a special verdict to the effect that the defendant's negligence caused the collision alleged, and was the proximate cause of the plaintiff's injury, and that there was no contributory negligence on the part of the plaintiff, and also returned a general verdict in favor of the plaintiff, and therein they assessed her damages at $1,500. From the judgment entered thereon in favor of the plaintiff, the defendant brings this appeal.Ross, Dwyer & Hanitch, for appellant.
McHugh, Lyons & McIntosh, for respondent.
CASSODAY, J. (after stating the facts).
The evidence on the part of the plaintiff tends to prove that she and another person were riding in a phaeton with Mrs. Jones, who was an experienced driver; that Mrs. Jones was sitting on the right-hand side of the phaeton; that the horse was going west on a walk, between the curb of the street and the south rail of the south track; that a sprinkling wagon was approaching from the west, about a block away; that to avoid the sprinkling wagon the driver, Mrs. Jones, attempted to cross the defendant's tracks by turning and going diagonally in a northwesterlydirection, at an angle of about 45 degrees; that the horse had crossed the south track, and also the space between the two tracks, and the hind wheel of the phaeton was on the north track, when the collision occurred; that the top of the phaeton was up; that there were no curtains on the sides; that, before and after turning, the driver and the plaintiff were both listening for a car; that just after so turning the driver looked back along the track a distance of about 45 feet to see whether a car was approaching; that she saw no car; that just as she turned the plaintiff looked back along the track a distance of 100 feet, and saw no car; that neither the plaintiff nor the driver nor the other person mentioned knew of the approach of the car, or heard any signal, until it was within 8 or 10 feet of the carriage; that the car was moving at an unlawful rate of speed, to wit, exceeding 10 miles an hour; that the collision occurred instantly after they discovered the car. The evidence on the part of the defendant tends to prove that the phaeton was at the time going nearly straight across the track; that the speed of the car at the time did not exceed 5 to 7 miles per hour; that timely signals were given by those in charge of the car; and that the plaintiff and the driver could have seen the car in time to have avoided the injury, had they looked and listened as they should have done.
We are constrained to hold that under the peculiar circumstances of this case the evidence was sufficient to justify the trial court in submitting the question of the defendant's negligence to the jury for determination. Counsel for the defendant are undoubtedly right in contending, in effect, that a person approaching a railway track, with the view of crossing the same, is bound to use his eyes in looking, and his ears in listening, and if he fails to do so, and is injured in consequence, then he cannot recover, even though the defendant was guilty of a want of ordinary care. The decisions of this court to that effect are too numerous to mention. But, under the peculiar circumstances of this case, we are constrained to hold that the...
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