Lockwood v. Belle City St. Ry. Co.

• Decision Date: 07 January 1896
• Citation: 65 N.W. 866,92 Wis. 97
• Parties: LOCKWOOD v. BELLE CITY ST. RY. CO.
• Court: Wisconsin Supreme Court

92 Wis. 97

65 N.W. 866

LOCKWOOD

v.BELLE CITY ST. RY. CO.

Supreme Court of Wisconsin.

Jan. 7, 1896.

Appeal from circuit court, Racine county; Frank M. Fish, Judge.

Action by George E. Lockwood against the Belle City Street-Railway Company. Judgment for defendant, and plaintiff appeals. Affirmed.

This action was commenced October 7, 1893, to recover damages for personal injuries sustained by the plaintiff July 20, 1893, by reason of a collision of the wagon in which he was riding with the defendant's electric car, caused by the alleged willful, negligent, and reckless manner in which the defendant ran and operated its said car at the time, and without any fault on the part of the plaintiff. The answer consists of admissions, denials, and allegations that the collision was caused by the negligence and want of ordinary care on the part of the plaintiff and the persons and fellow passengers riding with him in the wagon, and on the part of the person driving the horse attached thereto. At the close of the trial, the jury returned a special verdict, to the effect (1) that the car in question was not in a defective condition at the time of the accident; (2) that the motorman in charge of the car did not, after having reasonable ground for apprehending danger of a collision with the vehicle in question, use reasonable care and diligence in endeavoring to avoid the accident; (3) that the plaintiff, before going upon the tracks of the defendant company at the place of the accident, did not look or listen for the purpose of determining whether a car was approaching the place where he intended to cross; (4) that if the plaintiff, before going upon the tracks of the defendant, had looked and listened, he could have discovered the approaching car in time to have enabled him to avoid all injury therefrom; (5) that the driver of the conveyance in which the plaintiff was riding at the time of the accident did see the approaching car before driving upon the north track; (6) that the driver of the vehicle in question was informed of the approaching car before driving upon the north track; (7) that the driver of the conveyance, by the exercise of ordinary care and prudence, could have stopped his horse in time to have avoided the accident; (8) that the driver was guilty of a slight want of ordinary care in driving upon the north track of the defendant under the circumstances; (9) that the horse, wagon, and occupants were in a place of safety after leaving the alley, and until the horse had reached the south rail of the north track; (10) that the car which collided with the wagon was moving at an ordinary and usual rate of speed at the time, (11) being approximately 6 miles per hour while passing between Main street and the place of the accident; (12) that the horse attached to the wagon was, at and immediately prior to the accident, traveling approximately at the rate of 3 1/2 miles per hour; (13) that, at the time the driver of the vehicle first saw or learned of the approaching car, no part of the horse or wagon was upon the north tracks of the company; (14) that the plaintiff, under the law as given to the jury by the court, was guilty of a slight want of ordinary care, which directly contributed to the accident; (15) that, should the court determine that the plaintiff is entitled to recover, then the jury assess the damages by him sustained, by reason of the accident, at $750. Thereupon the defendant moved the court for judgment upon the special verdict, which motion was granted, and judgment was thereupon entered in favor of the defendant, dismissing the complaint, with costs. From that judgment, the plaintiff brings this appeal.Wallace Ingalls and John B. Simmons, for appellant.

Dodge & Kearney, for respondent.

CASSODAY, C. J. (after stating the facts).

Main street, in Racine, runs in a northerly and southerly direction. State street starts at Main street, and runs westerly therefrom. The defendant has double street-car tracks on Main street, southerly from the east end of State street, and also has double streetcar tracks connecting with those on Main street, and curving from Main street onto State street, and running thereon westerly far beyond the place of the accident, and upon and over which the defendant's electric street cars run east and west at short intervals. State street, at the place in question, is 74 feet in width, the sidewalks occupying 12 feet on either side, leaving 50 feet between the sidewalks; and about the middle of that space is occupied by double street-car tracks, each track being 5 feet wide, with a space of 4 feet between the two tracks. Between the curb line on either side and the railway track is a little less than 17 feet. The cars going west run upon the north track, and the cars going east run upon the south track. There is an alley running southerly from State street, the middle of which is 120 feet west of the building front on Main street, but the alley is not continued on the north side of State street. The alley is about 16 feet wide. From the end of the alley to the north rail of the north track is 43 feet. About 129 feet west of the alley is a viaduct, and the grade from Main street to the viaduct ascends about 4 feet. On the north side of State street the viaduct is about 276 feet west of the west curb line of Main street. From a point opposite the alley in the center of the north track to the straight track on Main street, the distance is 160 feet; and, by following on the curve of the track onto State street, it is 170 feet. It appears from the facts, as stated by the plaintiff's counsel and his witnesses, in effect, that the vehicle was a three-spring delivery wagon; that the box was 11 feet and 11 inches long; that the thills were 7 feet long; that it was 19 feet and 3 inches from the ends of the shafts to the rear end of the box; that it was drawn by a single horse; that about half past 4 o'clock in the afternoon of the day named, at a point in the alley some distance south of State street, an iron safe was placed in the wagon a little in front of the hind wheels; that the plaintiff got onto the wagon to hold the safe in place; that the plaintiff's father occupied the east end of the seat as they moved north; that the plaintiff's uncle occupied the west end of the seat; that, while in these relative positions, the father drove north in the alley to State street; that their object was to take the safe to the father's house on the west side of the river, and for that purpose it was necessary to go west on State street; that, when they first came out of the alley, the father looked east, but saw no car; that there was a horse and wagon standing in front of an office on the opposite side of the street and immediately west of the line of the alley, if the same had been projected north; that from the end of the alley the horse was driven in a northwesterly direction; that, when the father first saw a car coming to the corner on Main street, the forefeet of the horse were then over the south rail of the south track; that, when the wagon was on the north track going west, the uncle told the father that there was a car coming, and to hurry up, and the father then saw it coming about 100 feet east of them; that he tried to get out of the way as much as he could, by turning as far as he could to the right, but the hind wheel on the left-hand side slipped along on the north rail of the north track; that, by reason of the length of the wagon and the obstructions north of the north track and the wheel slipping along the rail, the wagon could not be got out of the way sooner, and so the car ran into the hind end of the wagon, and threw the safe and the plaintiff out, and injured his thumb, so that amputation became necessary; that the place of the collision was about 50 feet east of the bridge or viaduct. That would be, according to the evidence, about 80 feet west of the line of the alley projected, or something more than 100 from the north end of the alley. It is conceded that, from the time they left the alley until the collision, the plaintiff did not hear nor see the car; that during that time he had hold of the safe with his back towards the east. The findings of the jury, to the effect that the plaintiff and the driver were each guilty of a want of ordinary care, are certainly sustained by the evidence. The fact that the plaintiff neither saw nor heard the coming car, and that his back was all the time turned towards the east, is conclusive that be neither looked nor listened for the coming car; and that certainly constituted negligence on his part, especially as he must have known during all the time of the danger that the faces of his father and uncle were towards the northwest, so that they could not see a car coming from the east without inconvenience. The fact that the plaintiff's father, driving the horse, saw the coming car when the horse's forefeet were on the south track, and saw that the portion of the street north of the north track, in the direction in which he was driving, was obstructed by a horse and wagon standing in front of the office mentioned, ought to have admonished him that there was danger of his obstructing the passage of the coming car, as well as endangering his own safety, if he persisted in driving in the direction of the obstruction, instead of turning and going west, south of all the tracks. Besides, it appears, not only from his testimony, but also from the testimony of his brother, who was on the seat with him, that he did not see the car at all until his brother told him to hurry up, as there was a car coming around the corner; and that when the brother saw the car coming, and not slowing up, he again told the driver, and he again urged the horse up; and that, when the car approached nearer, the uncle waved his hand twice at the motorman to stop. The driver's negligence is apparent.

2. The plaintiff called, as a witness, the...