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

• Decision Date: 08 January 1901
• Citation: 84 N.W. 823,108 Wis. 593
• Court: Wisconsin Supreme Court
• Parties: TESCH v. MILWAUKEE ELECTRIC RAILWAY & LIGHT CO.

108 Wis. 593

84 N.W. 823

TESCH

v.MILWAUKEE ELECTRIC RAILWAY & LIGHT CO.

Supreme Court of Wisconsin.

Jan. 8, 1901.

Syllabus by the Judge.

1. The doctrine of comparative negligence does not prevail in this state. Therefore, in a case involving the subject of contributory negligence, the rule that obtains in some jurisdictions does not apply, that if plaintiff was guilty of contributory negligence he may yet recover if defendant discovered his peril in time to have avoided injuring him by the exercise of ordinary care; nor the rule that, notwithstanding plaintiff's negligence, he may recover if defendant was guilty of gross negligence, speaking of fault not amounting to actual intent to injure, or that wanton disregard for the safety of others equivalent thereto sometimes called constructive intent; nor the rule that if plaintiff's negligence preceded that of the defendant in time, and the latter by the exercise of ordinary care could have avoided injuring the former and failed to do so, the negligence of the former is considered a condition, and the negligence of the latter the sole proximate cause of the injury, notwithstanding such condition was a mere continuance of the negligent act and concurred with defendant's fault at the instant of the accident to produce it.

2. The doctrine in this state is that contributory negligence of the plaintiff, however slight, precludes his recovering of the defendant on the ground of negligence, regardless of the degree thereof, speaking of conduct characterized by inadvertence, not that misconduct known in the decisions of this court as gross negligence.

3. Before crossing a railway track, regardless of whether it be a steam or electric street railroad, a person should look both ways and listen for a coming car and perform that duty when and where it will be reasonably certain to effect its purpose; and diversion of attention, generally speaking, will not excuse the performance of such duty; neither will misconduct on the part of the railway company.

4. If in taking a special verdict questions be submitted covering singly all the material controverted facts in issue, a refusal to submit other questions covering the same subjects in a different form, or covering evidentiary facts, is proper.

5. A refusal to instruct a jury in accordance with suggestions contained in special questions presented for submission to them, or the giving of instructions in regard to a particular subject, is not reversible error, if, by the verdict rendered, it is clear that the facts necessary to the applicability of such instructions given or refused did not exist.

6. An ordinary traveler upon a public street where a street-car line is located and operated under a public franchise having no restrictions or regulations as to the manner of operating cars, has not the same right to go upon the track and compel the stopping of a car to enable him to pass over the track as the operator of the car has to delay his passage to enable the car to pass.

7. The ordinary traveler has the right of way in crossing a street-car track in advance of an approaching car, if, calculating reasonably from the standpoint of a person of ordinary care and intelligence so circumstanced, he has sufficient time, proceeding reasonably, to clear the track without retarding the movement of the car if its rate of speed is lawful; and if it turns out that he has miscalculated, he is not chargeable with want of ordinary care or with violating any rights of the railroad company if it is compelled to retard the motion of the car or even stop it to enable such person to cross the track; and in no event is such a person a wrongdoer so as to excuse the operator of the car from not exercising ordinary care to avoid injuring such person, though the fault of such person may preclude him from recovering damages for any injury that may result in part from his conduct.

8. If a person about to cross a street-car track in the circumstances above stated, observes a car that is coming towards him at an unreasonable rate of speed, or if in the exercise of ordinary care he ought to observe it, such care requires him to take that into consideration in determining the probability of his being able, proceeding reasonably under the circumstances, to clear the track and avoid being injured by a collision with the car.

9. If a person, traveling with a horse and carriage, approach a street crossing to pass over double street-car tracks located on the street running at right angles with that on which he is approaching, observes a car coming from the left on the track nearest him and one from the right on the other track, and stops for such cars to pass, the horse being located about 10 feet from the nearest car rail, and the car from the left passes by and stops at the right-hand cross walk and the one from the right passes over the street,--the conditions being such that he can see the furthest track at the right, looking by the front end of the stationary car, from a point about 100 feet from the crossing to a point about 100 feet further to the right and can see such track in front of him to the left of the stationary car for about 40 feet from the point of crossing, leaving about 60 feet of the furthest track to the right out of view because of the stationary car,--and a second car is approaching from the right on the furthest track, a little way behind the first car coming from that direction, and at the instant the second car passes by he looks both ways for other approaching cars and sees one coming from the left, though not dangerously near, and none coming from the right, though at the instant of taking the observation one has just passed out of view within the 60 feet of track shut out from observation by the stationary car and is approaching at a speed of 10 miles an hour, an unusual rate of speed for that situation and under the circumstances, without giving any signal of its approach, and he then starts to cross the track believing the way to be safe, he is not guilty of a want of ordinary car as a matter of law. The rule requiring one to take an observation of a railroad track before attempting to cross it, reasonably calculated to acquaint him of the presence of cars in dangerous proximity to the crossing, is not in conflict herewith.

Appeal from superior court, Milwaukee county; J. C. Ludwig, Judge.

Action by Charles F. Tesch against the Milwaukee Electric Railway & Light Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Action to recover damages for a personal injury. The evidence produced bearing on the issues made by the pleadings established or tended to establish the following: Virginia street runs east and west and Reed street crosses it at right angles running north and south, in the city of Milwaukee. Such streets are about 60 feet wide between curb lines. The defendant has a doubletrack electric street railroad on Reed street, operated by the overhead trolley system. The streets are much used, particularly at the crossing. Street cars pass both ways at short intervals, those going south using the west track and those going north the east track. Plaintiff was perfectly familiar with the crossing and all the dangers attending its use by travelers with teams. Both streets were sufficiently level to permit a view of them either way by one standing at the crossing. There were buildings on the corners on the west side, so that one approaching the railway tracks on Virginia street from that side could not see the tracks up and down the street till he arrived at the crossing. On November 26, 1897, commencing about 8 o'clock a. m., there was a snowstorm which lasted till after the happening of the injury, which was a little later in the day. The falling snow prevented a clear view of objects up or down the street, but the difficulty was not so great but that an approaching street car could readily be seen for a distance of more than 150 feet. The falling snow and other weather conditions caused the street-car track to be slippery, so that it was impracticable for a motorman to control his car as completely as he otherwise could. On account of such conditions the motorman on the car that produced the injury was unable to determine readily within what distance he could stop it, because the wheels were liable to slip on the track. In the circumstances stated, plaintiff and his brother, riding in a covered buggy, with no curtains thereon, drawn by a gentle horse, approached the crossing from the west, driving on Virginia street. As they arrived at a point where they had a full view of the street-car tracks both ways on Reed street, they observed two cars approaching, one from the north on the west track and one from the south on the east track. The cars were so near the crossing that plaintiff did not think it was safe to attempt to cross. He stopped his horse so that its feet were located about 12 feet from the west rail and the buggy seat was located about at the curb line, distant about 25 feet from such rail. While plaintiff was so located the car coming from the north passed and stopped to allow a passenger to alight at the south cross walk. Immediately thereafter the car going north on the east track passed over the crossing without stopping. Plaintiff then looked both ways for coming cars and observed one coming from the north about 150 feet from the crossing, but did not see any coming from the south, though one had just disappeared from view behind the car that was located at the south cross walk. The car approaching from the north was moving pretty fast and the motorman, observing plaintiff's purpose to cross, sounded his gong vigorously. Plaintiff, thinking he had time to make the crossing, started and moved pretty fast in order to do so. He passed over the west track safely and as he did so he looked to the south and saw a car coming from that direction and so near that it was impossible for...