Syslack v. Nevin Grocery Co.

Citation193 N.W. 61,180 Wis. 267
PartiesSYSLACK v. NEVIN GROCERY CO.
Decision Date03 April 1923
CourtUnited States State Supreme Court of Wisconsin

OPINION TEXT STARTS HERE

Appeal from Municipal Court of Racine County; E. R. Burgess, Judge.

Action by Nels Syslack against the Nevin Grocery Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded for new trial.Whaley & Erickson, of Racine, for appellant.

Thompson, Myers & Kearney, of Racine, for respondent.

DOERFLER, J.

At about 6:30 o'clock in the evening on November 28, 1921, the plaintiff, while passing from the east curb of West boulevard, a north and south street in the City of Racine, at a point some 200 feet north of Twelfth street, to board a car running north on such boulevard, which had either stopped or was about to stop opposite the depot of the Chicago & Milwaukee Electric Railway Company located west of said boulevard, was struck by the defendant's Ford truck traveling along the east side of said car, causing the plaintiff to sustain personal injury. There is a usual stopping sign near the east curb, where the car finally stopped, and at such stopping place it was customary for the street car company to receive and discharge passengers.

Plaintiff testified that he stood at the curb opposite the stopping place for some time, for the purpose of boarding the car, and that a short distance south from where he stood other prospective passengers were also waiting for a similar purpose. Plaintiff also testified that, when he left the curb to board the car, the car had about come to a stop, and that he looked toward the south and did not discover the approaching automobile, which was traveling parallel to the car and between the track and the east curb, at the rate of about eight miles per hour. According to the plaintiff's testimony, the street car had come to a full stop before the collision took place, while, in accordance with the defendant's testimony, the car at the time of the collision had not yet come to a stop. The record also shows that, after the plaintiff had proceeded halfway across that portion of the street lying between the east curb and the east rail of the single track line, he was struck by the defendant's automobile, causing him to be dragged a short distance, and to sustain rather severe personal injuries; that the night was dark, and that at the time of the collision the auto had a weak, dim headlight; that the usual lights on the street car were burning, and that neither the driver of the defendant's car nor his companion saw the plaintiff until immediately preceding the collision.

The jury, in answer to the questions of the special verdict, among other things found the operator of the automobile guilty of negligence, and that such negligence was the proximate cause of the injury, and that the plaintiff was not guilty of any negligence which proximately contributed to the injury. The case was tried by the court upon the theory that the provisions of section 1636--49 of the Statutes contemplate that the place where the car stopped constituted a crossing, which required the operator of an automobile to stop his car while the street car was in the act of receiving or discharging passengers, and this attitude of the court defendant's counsel assigns as error.

It is contended on behalf of the defendant that the statute referred to is applicable only to a stopping place of a street car where passengers are received or discharged at a point where there is an actual crossing of two streets, or where one street runs into another street, not crossing the same, but intersecting it. On the other hand, it is contended by plaintiff's counsel that the statute in question must be so construed as to include any usual and customary place where a street car stops for the purpose of receiving and discharging passengers.

The portion of the statute referred to reads as follows:

“The operator or driver of any vehicle, when any street car passing in the same direction is actually taking on or discharging passengers at the crossings or intersections of any public streets or highways, shall stop such automobile * * * until such passengers shall have been taken on or discharged from such car.”

It would appear that the portion of the statute quoted is a deviation from and in derogation of the common-law rule, of which the other portion of the same statute hereinafter quoted is declaratory. The precise question involved has never before been presented to this court, and there is no satisfactory authority upon the subject, as far as we have been able to find, in other jurisdictions. The case of Michalsky v. Putney, 51 Pa. Super. Ct. 163, is in many respects similar to the instant case, and, although the court in that case held that the stopping place was the equivalent of a street crossing, used and recognized as such by the public, and that the street car company made that location a place for the receipt and discharge of passengers, yet in its decision the court did not lay down the rule arbitrarily requiring an automobile to stop in such a situation, but held that the same should have been under proper control to...

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