Natalie v. Chi. & M. E. Ry. Co.

• Citation: 160 Wis. 583,149 N.W. 697
• Court: Wisconsin Supreme Court
• Decision Date: 08 December 1914
• Parties: NATALIE v. CHICAGO & M. E. RY. CO. ET AL.

160 Wis. 583

149 N.W. 697

NATALIE

v.CHICAGO & M. E. RY. CO. ET AL.

Supreme Court of Wisconsin.

Dec. 8, 1914.

Appeal from Circuit Court, Milwaukee County; Oscar M. Fritz, Judge.

Action by Adam Natalie, as administrator of the estate of Joseph Natalie, deceased, against the Chicago & Milwaukee Electric Railway Company and others. Judgment for plaintiff, and defendants appeal. Reversed and remanded, with directions to dismiss the complaint.

Joseph Natalie, an infant 4 1/4 years of age, was killed by one of the defendant's interurban cars near the intersection of First avenue and Park street in the city of Milwaukee, and his father as administrator brings this action to recover damages for his death. The boy left home, and his father went out to look for him and found him on the east side of First avenue between 55 and 60 feet north of the Park street corner. The father called to the boy to go home, and he immediately started to run across the street diagonally in a southwesterly direction. A car proceeding south on the west track collided with the boy and killed him. The car was 52 feet in length and weighed about 40 tons. The negligence claimed was: (1) Excessive speed; (2) failure to give proper signals; (3) failure to equip the car with a proper fender; (4) failure to stop the car in time to avoid the collision. The jury found: (1) That when the motorman applied the brakes the car was proceeding at a speed of 15 miles per hour; (2) that this rate of speed was not excessive; (3) that the motorman did not negligently fail to sound the gong or whistle; (4) that in the exercise of ordinary care the motorman should have brought the car to a stop in time to avoid the accident; (5) that such failure was a proximate cause of the injury; (6) that Joseph Natalie was in front of the pilot at the time of the collision; (7) that the car was not provided with a suitable pilot; (8) that the failure to provide such a pilot was not a proximate cause of the injury; (9) that the parents of Joseph Natalie were not guilty of any want of ordinary care which proximately contributed to produce his injuries; and (10) that plaintiff sustained damages in the sum of $1,091. Judgment for plaintiff was entered on this verdict, and defendant appeals.Edgar L. Wood, of Milwaukee (Bull & Johnson, of Chicago, Ill., of counsel), for appellants.

Glicksman, Gold & Corrigan, of Milwaukee, for respondent.

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

The appellant contends that the finding that the motorman was negligent in failing to stop the car is not supported by any evidence and is contrary to the undisputed testimony in the case. The respondent argues: (1) That the finding has sufficient support in the evidence; and (2) that the failure to provide such a fender as the law provides was gross negligence, for which there can be a recovery, notwithstanding the finding of the jury that the failure to provide a proper fender was not a proximate cause of the boy's injury.

A third contention, to the effect that the interurban car was a nuisance in the street, is argued in the brief. We understand that this claim has been abandoned. It was based on a conceded error in printing the articles of incorporation of the defendant.

[1] 1. The motorman testified that he observed the boy running just as he left the curb, and that he fully appreciated the fact that there was likelihood of his being struck by the car, and that he immediately applied the emergency brake with full force, sounded the alarm whistle, struck the gong, and opened the sand box. No witness testified to the contrary in reference to the brake being set. The jury found that proper signals were given, but apparently disbelieved the evidence of the witness in reference to setting the brake. The motorman testified that the speed of the car was only six or eight miles an hour. The jury did not believe this evidence, and it must have found that the car was further away from the point of collision when the boy left the curb than the motorman claimed it was. The respondent argues that the motorman's evidence was contradicted and found to be untrue in some important particulars, and that the jury might disregard his statement in reference to applying the brake, and that there was evidence in the case from which it might properly be inferred that he did not exercise due care in attempting to stop the car.

Certain important facts are settled by the verdict of the jury and others equally important by the undisputed evidence. All the witnesses agree that the boy was running, and it appears without dispute that the distance from the curb to the place where he was struck was 33 feet. There is nothing whatever to indicate that he did not run in a substantially straight line. But one witness, Anton Gross, testified to the rate of speed at which the boy was running. He said: The boy “was going just as fast as kids can run. He can make three miles an hour all right, four if he runs a full hour.”

“Q. If he ran a full hour he might; you think that was the rate the little fellow was running when you saw him? A. Yes, sir; whether he was going slower than that I didn't know, or whether he was going faster than that I cannot tell, on that. I can't tell how fast the little boy was going.”

[2] It is perhaps a matter of common knowledge that boys 4 1/4 years old can run as fast as what would be a fair walking gait for a man, which is about four miles an hour. On this basis the boy would run 33 feet in six seconds. If his rate of speed were only three miles an hour, it would take him not to exceed eight seconds. So it is apparent that the accident happened quickly after the boy left the sidewalk, and that the motorman did not have much time to stop the car. The boy's father was as close to the point of collision as the boy was when he started to run, but made no attempt to catch him because he said it would do no good and both of them would get hurt. He did not even call to the boy to stop, but stepped into the street and waved his hands at the motorman and shouted to him to stop. As the boy was running across the street he passed within 20 or 25 feet of the father. Those of the witnesses in the car who testified on the point said that the accident happened very quickly. Plaintiff's witnesses did likewise in effect, most of them estimating the speed of the car at from 25 to 35 miles an hour. Now it is in evidence and is apparent that it takes a little time to shut off the power and apply the brake. It is also in evidence that it takes a little time for the brake to take hold after the air is applied. Two witnesses testified on this point, an expert called by plaintiff, and the motorman. They disagree as to the length of time, plaintiff's witness putting it at five seconds and the motorman at one second. We must, of course, accept the testimony most favorable to the plaintiff. The car did not run to exceed 65 or 70 feet after the boy was struck. The motorman testified that if the car was going eight miles an hour it could be stopped in a distance of 80 or 90 feet. He did not testify to any other rate of speed. Plaintiff's expert testified that if the car was going 8 miles an hour it could be stopped in 15 or 20 feet; 9 miles an hour, 25 feet; at 10 miles an hour, 33 feet; at 11 miles an hour, 55 feet; at 12 miles, 90 feet; at 13 miles, same; at 14 miles, same; at 15 miles, 200 feet. Counsel evidently thought he testified inadvertently in giving the latter distance, and repeated his question and received the same answer a second time. If the evidence as to the 15-mile rate of speed is correct, then the brake must have been applied 130 feet from where the boy was struck. Considering the relative speeds at which they were probably traveling and the decreasing speed of the car due to the operation of the brake, they would reach the point of collision about the same time. The distance required to make the stop as testified to by the expert is further corroborated by a number of witnesses who were riding in the car at the time of the accident. Three of them testified that the whistle was blown and the brakes applied when the car was about the center of the block. This evidence is not disputed in reference to the setting of the brake. There was some evidence tending to show that the whistle was not blown, but the jury found otherwise. The center of the block is substantially 120 feet north of the point of collision, and if the brake was applied at or near that point, it must have been set about as...