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

• Decision Date: 05 March 1935
• Citation: 259 N.W. 724,217 Wis. 481
• Court: Wisconsin Supreme Court
• Parties: PETERS v. MILWAUKEE ELECTRIC RY. & LIGHT CO.

217 Wis. 481

259 N.W. 724

PETERS

v.MILWAUKEE ELECTRIC RY. & LIGHT CO.

Supreme Court of Wisconsin.

March 5, 1935.

Appeal from a judgment of the Circuit Court for Milwaukee County; Daniel W. Sullivan, Circuit Judge.

Affirmed.

Action brought by John Peters to recover damages from the Milwaukee Electric Railway & Light Company for personal injuries sustained by him as the result of a collision with a street car, which he alleged was being negligently operated by the defendant. Upon a trial the court directed a verdict for the defendant, and entered judgment dismissing the complaint. Plaintiff appealed.

FOWLER and WICKHEM, JJ., dissenting.I. B. Padway and Max E. Goldsmith, both of Milwaukee, for appellant.

Shaw, Muskat & Paulsen, of Milwaukee, for respondent.

FRITZ, Justice.

Plaintiff contends that the court erred in directing a verdict for the defendant in this action to recover damages for personal injury sustained by plaintiff on March 9, 1931, upon being struck by one of defendant's electric street cars, while he was walking across defendant's tracks at a street intersection. Viewed most favorably to the plaintiff, the evidence admitted finding the following facts. Plaintiff was struck by a south-bound car while he was walking westward on the north crosswalk. When he was about to step on to that crosswalk, at the east curb of the street, he had observed that the car was about a block to the north, and he planned to board the car at the northwest corner of the intersection. Upon walking a few steps from the east curb, he waited for several north-bound automobiles to pass and then continued westward. When he was in the center of the north-bound car track, about 7 3/4 feet east of the nearest rail of the south-bound car track, he again looked northward and saw that the approaching south-bound car was 50 feet away. He held up his hand as a signal to the motorman, and claims that the latter responded by nodding, which plaintiff interpreted as an affirmative answer. The motorman admitted seeing plaintiff's raised hand, but denies that he nodded in response. Plaintiff then, without looking again toward the approaching car, walked at a more rapid rate--but without running--the remaining distance of 7 3/4 feet to the east rail of the south-bound car track and some 4 or 5 feet beyond, when he was struck by the car. He testified that, on making his last observation as to the car, he did not make any estimate as to its speed, but that “it started to slow down and then started ahead real fast again, as though he was going to stop and did not.” On the other hand, other witnesses testified that the car approached at the rate of 12 to 15 miles per hour; that it was about 6 feet from the plaintiff the instant he stepped from safety to danger; that as soon as the motorman saw that plaintiff had started to walk faster, he had applied the emergency brakes when 10 to 15 feet from plaintiff, and did everything that he could do to stop the car; and that he brought it to a stop in 35 feet, at a point which was 20 feet beyond the place of collision.

[1] In answer to plaintiff's contention that the court erred in directing a verdict for defendant, the latter contends that, as it is undisputed that plaintiff failed to make an observation for the car at the last moment of opportunity before entering the zone of danger, there was no issue for the jury as to that fact, and that his failure in that respect constituted contributory negligence, as a matter of law, which defeated his right to recover. It is well established that “due care in approaching a railway track can be satisfied only by the full use of the senses of sight and hearing at the last moment of opportunity before passing the line between safety and peril. Schroeder v. W. C. R. Co., 117 Wis. 33, 38, 93 N. W. 837.” Goldmann v. M. E. R. & L. Co., 123 Wis. 168, 170, 101 N. W. 384, 385;Meissner v. Southern Wis. R. Co., 160 Wis. 507, 509, 152 N. W. 291.

Although the collision involved in Goldmann v. M. E. R. & L. Co., supra, was betweena horse and a street car, the court then said, in relation to the duty of a foot traveler, that “the single step onto the track is negligence unless, before taking it, he assures himself, by observation, of its safety, if the view is unobstructed.” That is in accord with the established rule, which, in White v. Chicago & N. W. Ry. Co., 102 Wis. 489, 493, 78 N. W. 585, 587, was stated as follows: “No less certain and absolute is the duty to observe and heed the danger that is in sight. To a person approaching a railroad track on foot, the danger line is so narrow, and may be avoided with so little effort, that the law justly thrusts the obligation of exercising that effort upon him. If he fails to use common prudence, and is injured, he is without remedy.” See, also, Schliesleder v. M. E. R. & L. Co., 147 Wis. 668, 134 N. W. 144;Lotharius v. M. E. R. & L. Co., 157 Wis. 184, 188, 146 N. W. 1122;Schmidt v. M. E. R. & L. Co., 158 Wis. 505, 508, 149 N. W. 221.

[2] In the case at bar it is undisputed that, after last observing the car, when he was 7 3/4 feet from the nearest rail on which it was approaching, plaintiff walked that distance and entered the pathway of that car, which constituted a zone of danger, without again looking toward it to ascertain whether he could cross in safety ahead of it; that, at the moment he finally entered that zone of danger, he could readily have observed, by looking to the north, that the car was continuing to approach in such a manner as rendered it impossible to walk across its pathway in safety; and that, if he had so observed, he could readily have halted instantly, at every step which he was taking, instead of continuing to walk into that zone of danger. Traveling as he was on foot--and not running--with his movements under easy and immediate control, he had no such momentum to overcome, and no such time taking operation to perform, as make it impossible for a traveler by motor or horse drawn vehicle to stop instantly. The substantial differences in those respects between a traveler on foot and a traveler by vehicle materially affect the proposition as to what constitutes the last moment of opportunity before entering the zone of danger. Although two seconds before entering the zone of danger may be the last moment of opportunity for an automobile driver to take the required last observation, under such circumstances as existed in Dahinden v. M. E. R. & L. Co., 169 Wis. 1, 171 N. W. 669, it is obvious that no such length of time between the taking of that last observation and the entering of the zone of danger should be permitted to elapse in the case of a pedestrian required to exercise due care for his safety.

Consequently, in that respect, the decisions in such cases as Dahinden v. M. E. R. & L. Co., supra, and Grimm v. M. E. R. & L. Co., 138 Wis. 44, 119 N. W. 833, are inapplicable. On the other hand, squarely in point in respect to the conduct and resulting contributory negligence of the plaintiff in this case is the following statement in Lotharius v. M. E. R. & L. Co., supra, page 188 of 157 Wis., 146 N. W. 1122, 1124: “It is undisputed that the plaintiff was fully aware that the street cars were then running on these tracks, and that a glance to the north or south, while standing in this dangerous position would have informed him of the approach of any street car and enabled him to step out of the course of the car and thus have avoided the danger. The facts alleged clearly show that the plaintiff stepped into this dangerous place knowing that a street car could not pass without colliding with him, that if he had momentarily glanced to the north and south he could have observed approaching cars, and that under the circumstances there was nothing to prevent him from stepping aside into a place of safety and avoid a passing car. From such conduct on his part but one reasonable inference can follow, namely, that he omitted to exercise the care that ordinarily prudent persons, under similar circumstances, would exercise for their safety, and there can be no question but that the plaintiff's conduct in this regard proximately contributed to cause the injuries of which he complains in this action.”

[3][4] Even if, as plaintiff claims, he interpreted an alleged nod by the motorman as an affirmative response to his raised hand signal of his desire to become a passenger, that did not prevent or excuse him from performing his absolute duty of looking just before stepping into the zone of danger toward the approaching car, and thus discovering its imminent approach and avoiding entering upon its pathway, as he could readily have done by exercising ordinary care. His own negligence in those respects is not excused because of any negligence on the part of the motorman. The latter's alleged nod did not entitle plaintiff to assume that the motorman was yielding the right of way to him, when upon a mere glance toward the car...