Ryan v. La Crosse City Ry. Co.

• Decision Date: 25 September 1900
• Parties: RYAN v. LA CROSSE CITY RY. CO.
• Court: Wisconsin Supreme Court

108 Wis. 122

83 N.W. 770

RYAN

v.LA CROSSE CITY RY. CO.

Supreme Court of Wisconsin.

Sept. 25, 1900.

Appeal from circuit court, La Crosse county; O. B. Wyman, Judge.

Action by William Ryan, by his guardian ad litem, against the La Crosse City Railway Company, for personal injuries. From a judgment in favor of plaintiff, defendant appeals. Reversed.

Dodge and Winslow, JJ., dissenting.

Losey, Woodward & Lees, for appellant.

Higbee & Bunge, for respondent.

CASSODAY, C. J.

This action is brought by the plaintiff to recover damages sustained April 24, 1898, by being struck by the defendant's car, running south on Caledonia street, between Clinton and St. Paul streets, in La Crosse. Issue being joined and trial had, the jury returned a verdict in favor of the plaintiff for $1,800, and from the judgment entered thereon the defendant brings this appeal.

It appears from the record, and is undisputed, that at the place of the injury the defendant maintained double tracks; that such double tracks ran from the south on Mill street to St. Cloud street; then east on St. Cloud street to Caledonia street; then north, crossing in succession Wall street, Windsor street, St. Paul street, Clinton street, and Logan street, and to Sill street, which is the next street north of Logan street, and then the double tracks turn to the east on that street; that cars going south ran on the west track, and those going north on the east track; that the plaintiff lived with his father on the east side of Caledonia street, between St. Paul street and Clinton street, about 25 feet back from the sidewalk, and the walk ran from the house to the inner edge of the sidewalk at a point about 115 feet north of St. Paul street, and about 235 feet south of Clinton street; that about 65 feet north of that walk leading to the plaintiff's home was the south line of the Horner lot, the buildings thereon having a frontage of 25 feet on Caledonia street; that the north line of the Horner buildings, projected west across Caledonia street, is identical with the south line of the Club Saloon, fronting on that street on the west side thereof; that the entrance to the Club Saloon was 140 feet south of Clinton street, and 117 feet from the street end of the Ryan walk, in a southeasterly direction therefrom, and directly opposite a point 96 feet north from the street end of the Ryan walk; that from such entrance to the south line of the Club Saloon was 10 feet; that 50 feet immediately south of the Club Saloon was occupied by the double store building belonging to B. A. Siggins; that next south of the Siggins place, on the same street, was a barber shop with a frontage of 20 feet, and that 80 feet of the frontage next south of the barber shop was occupied by dwellings. The plaintiff was 9 years old July 23, 1898, and hence was 3 months younger at the time of the accident. A few minutes before 6 o'clock in the afternoon of the day of the accident the plaintiff was sent by his father from his home to the Club Saloon, across the street mentioned, to get a pail of beer. He testified to the effect that after he got the beer he came out of the Club Saloon, and walked out into the street, and then walked down south by the side of the track, when he saw that a car was coming from the south on the east track; that he waited until that car passed him going north; that after that car passed him he was going to go home; that he was walking slowly by the side of the rail, with his pail full of beer, but no cover on it; that he was struck by the car on the left side of the back of his head, and knocked down, and the hind wheels of the car ran over him and dragged him some distance and cut off his toes; that he did not hear any bell just before he was struck, nor any warning or noise, to indicate that the car was coming behind him from the north; that his pail was small, and full of beer up to about 2 1/2 inches from the top, and that he was carrying it in his right hand; that he was afraid he would spill it that when he came out onto the street he went over near the street-car track right in front of the saloon, but that he was not sure about that; that he was not looking at the beer; that he had often before that time crossed those tracks, and knew that the cars ran south on the west track and north on the east track; that he did not look up north to see whether there was any car on the track when he came out of the saloon, but did look south, and saw the car at St. Paul street coming north; that he never looked up north towards Clinton street at all; that when he got onto the track he kept on walking down the track; that he did not know how near he got to the west rail of the track; that he waited for the other car to pass him; that he did not stop in the street; that he was listening for a car from the north, and thought a car might be coming down on the track on the west side; that no bell rang; that he was listening for the bell, but did not look at all; that his back was turned to the north all this time, and his face directly south; that he first turned his face to the east, when he attempted to cross; that he did not look up at all to see if there was any car or pay any attention to any car from the other direction; that he did not know how far the car going north got by him before he started to cross, but it got some little distance away; that he was walking slowly in the street, and had not yet started to go across the track when the car struck him; that he was still walking down the side, and was outside the rail, when he was struck; that he thought that a car might be along on the west track; that both cars were in the same block when he got struck; that he did not know how far he walked down before he was struck, nor whether it was down as far as his father's house; that he did not look at all for the car that was coming down, and that he did not listen for it, nor pay any attention to it at all; that he had lived there two years, and knew he must not get in front of a car, and that if he did he would get hurt; that he knew all about that. The plaintiff's sister, sitting in her father's house, testified in corroboration of the plaintiff, and also to the effect that the two cars passed right in front of the Horner building, near the south end of the Club Saloon; that the plaintiff was struck about in front of the barber shop; that the bell was not rung immediately prior to his being struck; that she did not hear the danger bell, and did not know that it rung. The only passenger on the car testified to the effect that she could not say whether the bell rung or not; that she did not remember of hearing the gong sound. A witness for the plaintiff testified to the effect that a car running 18 miles an hour could be stopped, by applying the brake and shutting off the current, within 40 or 50 feet, and in less distance by reversing the current. There is also evidence to the effect that the defendant was authorized by ordinance of the common council to run its cars at a speed not exceeding 20 miles an hour. B. A. Siggins, who occupied the building immediately south of the Club Saloon, testified to the effect that he saw the boy just getting up off the ground a little north of the center of the barber shop, and that the car had then stopped, and the hind end of it was just a little ways south of the barber shop and 10 or 15 feet from the boy, and the front end about 30 feet from him; that there were marks on the ground where the boy had slipped or slid along in the beer about 10 feet. The motorman on the car in question testified to the effect that he had been working for the defendant 20 months; that he rang the bell as usual in crossing over Clinton street; sounded the gong with his foot all the way across that street; that after crossing it he stood erect, with his hand on the controller,--on the brake,--looking straight ahead down the track; that he passed the north-bound car 60 or 70 feet north of the place of the accident; that he saw the boy about the time of the accident; that when he first saw him he was in the street,--he thought about the south end of Siggins' store, but could not say how far away from the street-car track; probably 6 or 8 feet from the gutter when he first saw him; that he was then running diagonally southeast towards his home, probably 50 feet from the car; that he cut his current and applied his brakes as soon as possible, and sounded his gong more than once; that when the car truck the plaintiff he had got his current off, and was tightening his brake; that everything on his car was equipped in good condition; and that he was not running over 12 or 13 miles an hour at the time. The conductor of the car, who at the time was standing on the rear platform facing the south, testified to the effect that the car was running at the time 10 or 12 miles an hour; that the bell rang as they passed over Clinton street crossing, and while passing the north-bound car, just before the accident; that the first thing that attracted his attention at the point of the accident, or near and just before, was the sounding of the gong and the shutting off the current and applying the brakes; that when the car stopped it was 10 or 12 feet away from the boy lying upon the ground; and that the car was 28 or 30 feet long.

Such is a brief summary of the evidence. The substantial facts are practically undisputed. Three questions are suggested by the record.

1. Was the evidence sufficient to take the case to the jury on the question of the defendant's alleged negligence? The evidence that the bell was rung while crossing Clinton street and while passing the other car just north of the place of the accident is undisputed. The affirmative evidence that it was again rung after the motorman saw the boy, and before he was struck, establishes that as a fact in the case, and it is not overcome by the negative evidence in the record. The well-settled rule...