Nelson v. Pauli

• Decision Date: 10 January 1922
• Citation: 186 N.W. 217,176 Wis. 1
• Parties: NELSON v. PAULI.
• Court: Wisconsin Supreme Court

176 Wis. 1

186 N.W. 217

NELSON

v.PAULI.

Supreme Court of Wisconsin.

Jan. 10, 1922.

Appeal from Circuit Court, Milwaukee County; John J. Gregory, Judge.

Action by Andrew Nelson against C. G. Pauli. Judgment for plaintiff for $10,376.79, damages and costs, and defendant appeals. Affirmed.

The following appears from the evidence: Downer avenue is a public street in the village of Shorewood, Milwaukee county, running north and south, and is intersected at right angles by Edgewood street towards the south, and Morse avenue towards the north. The width of Downer avenue from curb to curb is 45 feet, and the length of the block from the north curb of Edgewood to the north curb of Morse avenue is about 350 feet. Located on Downer avenue between the intersecting streets above referred to is a single street railway track used by the Milwaukee Electric Railway & Light Company on which to propel its electric cars for passenger traffic. There is a distance of about 14 feet from the west rail of said track to the west curb of Downer avenue, and a distance of about 25 feet from the east rail of said track to the east curb of said Downer avenue.

Plaintiff was a motorman of the age of 63 years, and had been employed as such by said street railway company for a period of about 22 years. On the 19th day of November, 1919, at about 5:45 p. m. of the day, he was standing on the walk near the southeast corner of Downer avenue and Morse avenue, intending to board a Downer avenue car going north. In looking towards the south he saw a street car headed towards the north, stopping at the near crossing of Edgewood, and as the car started he proceeded to walk out into the street towards the track, and there stopped, awaiting the approach of the car, and at that time the car had arrived at a point about three car lengths south of where plaintiff stood. A number of automobiles were traveling northward alongside of the street car as it left Edgewood, and as these autos approached Morse avenue the plaintiff observed that the car which preceded the others was an electric.

The defendant, as the street car left Edgewood, drove his seven-passenger auto in the rear of the electric, which was proceeding northward between the track and the east curb. When the north-bound street car had arrived at a point about one car length south of the south crossing of Morse avenue, the defendant, who was driving his car at the rate of about 18 miles per hour, in order to pass the electric auto, steered his car towards the northwest immediately in front of and in close proximity to the street car, and then towards the northeast, so as to proceed along on that portion of Downer avenue lying east of the street car track. When the defendant in the effort to pass the electric auto swerved his car towards the northwest, the plaintiff was standing at a point about 2 to 3 feet east of the east rail of the street car track, and it was testified to by him that when he saw defendant's car headed towards the northwest, he concluded that it was the intention of the driver to proceed in that direction, and in that event there would be no danger whatever to him, at the point where he was then standing. The plaintiff had just observed the motion of defendant's car in a northwesterly direction, when suddenly and unexpectedly he observed the same being turned to the northeast, so that he would be directly in the path of defendant's car. In an effort to escape from the danger which then apparently confronted him, he moved rapidly towards the west, and almost succeeded in clearing the pathway of defendant's approaching car, but was struck by the left fender, as the result of which he suffered a severe injury to his left leg, causing a number of fractures in and around the ankle and the lower shin bone and in and about the ankle joint. On account of the nature of the injury, it was impossible to set the limb, and the attending physicians concluded to and did operate at the point of the injury, and then found numerous splinters and pieces of broken bones, many of which they removed. The good ends of the broken bones were then wired, after removing as many splinters as possible, and as the result of the mashed condition of the injured limb, and the dead tissues around the injury, an infection set in which gave the medical attendants considerable cause for apprehension, but which was finally allayed. As the result of the injury, the injured ankle has become permanently stiffened.

Dr. Differt, one of the attending physicians, testified that in his opinion there is no chance for substantial improvement of the injured limb as to action or movement, and that from time to time while the physicians visited the plaintiff, he found pus exuding from the injured portion of the limb, and that small portions of bone were expelled.

Plaintiff testified that he still suffers considerable pain, and it appears that the limb is shortened 1 1/2 to 2 1/2 inches. At the time of the accident, plaintiff was earning $5.64 a day, and his monthly earnings were between $160 and $165. According to the evidence introduced, the mortality tables show that plaintiff at 63 years of age has an expectancy of life of about 12 years.

There is no substantial or material conflict in the evidence as to the manner in which the injury occurred. No signal was given by the defendant, preceding the accident. At the time of the accident it was not very dark, and the lights were lit on the automobiles, and there was a light from Edgewood street, and the street car was also lighted.

The case was submitted to the jury on a special verdict, who found: (1) That the defendant failed to exercise ordinary care in the management and control of his automobile at and immediately prior to plaintiff's injury; (2) that such failure was the proximate cause of the injury; (3) that the plaintiff was not guilty of a want of ordinary care which proximately contributed to produce the injury; and (4) damages in the sum of $10,000.

After verdict, the defendant's counsel moved to change the answer of the third question of the special verdict from “No” to “Yes,” and for judgment upon such verdict as so changed. The refusal of the court to grant such motion constitutes defendant's first assignment of error.

Glicksman, Gold & Corrigan, of Milwaukee (W. D. Corrigan, of Milwaukee, of counsel), for appellant.

Van Dyke, Shaw, Muskat & Van Dyke, of Milwaukee, for respondent.

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

We have carefully examined the evidence in the case, and are convinced that the answer of the jury to the third question of the special verdict was amply sustained thereby. When plaintiff left the curb near the southeast corner of Downer avenue and Morse avenue, he proceeded to occupy a place upon the highway usually occupied by pedestrians when intending to board a street car. The street car track was west of the center of Downer avenue, and the distance between the east rail and the east curb of the street was fully 25 feet. There was ample space for automobiles to pass at least two abreast, north on the avenue, without in any manner interfering with plaintiff's safety while he was standing 2 or 3 feet east of the east rail of the track, awaiting the approach of the street car.

It is also quite clear that if the plaintiff had not assumed the position on the highway preparatory to entering the car when he did, and had waited at or near the curb until the string of automobiles approaching had fully passed, there might have been danger of his missing the street car.

The defendant was aware that the street car had stopped at Edgewood, and the evidence shows that in order to permit passengers to be discharged from or to board the car at that point, he was obliged to stop his car in the rear of the electric auto. He knew that the street car was proceeding northward from Edgewood to Morse avenue, and that there were a number of other autos proceeding northward on the right hand side of Downer avenue. He was familiar with the location of the streets, as he had lived in that locality for a considerable number of years. It must be presumed that he knew, and undoubtedly he did know, that there was a likelihood of the street car coming to a stop as it approached Morse avenue, for the purpose of permitting passengers either to board or alight from the car, and that in order to take passage upon the car, it would be necessary for a pedestrian to stand in close proximity to the car at a point where it is usual and customary for pedestrians to stand under like circumstances.

[1] The plaintiff, therefore, was duly justified in occupying the position he did, preparatory to boarding the car, and whether or not he knew of the approach of the defendant's auto immediately in the rear of the approaching electric auto, he had a right to assume that the defendant in the operation of his car would not make the sudden and decisive turn first towards the northwest, in endeavoring to pass in close proximity the moving street car and the electric auto, and then suddenly turn his machine towards the northeast, so as to place the plaintiff in the direct pathway of his approaching car. In fact, it appears to us quite clearly that the action of the defendant in so steering his car resulted in placing the plaintiff in a dangerous trap, from which it was difficult to extricate himself without great danger of sustaining injury. No signal was given by the defendant to warn the plaintiff of the approach of his car. Under these circumstances, it would almost appear as though the plaintiff was free from contributory negligence as a matter of law. In any event, the evidence is strong in plaintiff's favor, tending to prove his freedom from contributory negligence; and the jury having acquitted the plaintiff from the charge of contributory negligence, we cannot, under the numerous decisions of this court, set aside the answer of the jury to the question of the...