Bubb v. Milwaukee Electric Railway & Light Co.

165 Wis. 338 | Wis. | 1917

Lead Opinion

Wiwsnow, C. J.

The trial court recognized the principle laid down in the case of Turtenwald v. Wis. Lakes I. & C. Co. 121 Wis. 65, 98 N. W. 948, to the effect that in determining the question of care in such a case as the present it is to be remembered that the situation of the man engaged in labor upon the public street is quite different from that of the traveler upon the street; a principle recently more fully treated in the case of Dinan v. Chicago & M. E. R. Co. 164 Wis. 295, 159 N. W. 944. In the latter case it is said that such a man must keep that lookout for cars and vehicles which an ordinarily careful man compelled to be in the street and to be giving attention to his work would keep, and that such care must manifestly be a lesser degree of care than that required of the traveler, who may come and go as he will. In directing a verdict the trial judge said, after referring to the Turtenwald Case:

“Important distinctions lie in the fact that the plaintiffs work did not necessitate an actual entry on his part into the pathway of the car; the fact he was injured by a vehicle which was coming from the direction in which vehicles usually come and are expected to come at the point of the accident; the fact that the car was proceeding upon a pathway which was definitely fixed by the course of the street railway tracks from which it could not deviate in order to avoid injury, and that the very presence of those tracks constitutes a warning or admonition of probable danger.”

He might have added that the plaintiff in doing his work was facing the south all the time (the direction from which the car came), that he had opportunity to look every time he-raised his shovel to the wagon, and that he admits that he-never looked more than ten or twelve or thirteen feet towards, the south, although there was nothing to prevent him from ■ looking- for a long distance.

After careful consideration of the evidence we are unable to say that the trial court was clearly wrong in the conclusion reached, and hence, upon very familiar principles, the judgment cannot be reversed.

By the Court. — Judgment affirmed.

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Dissenting Opinion

Eschweiler, J.

(dissenting). This case was tried in September, 1916. The case of Dinan v. Chicago & M. E. R. Co. 164 Wis. 295, 159 N. W. 944, was not determined until November 14, 1916.

After the case had been submitted to the jury the court below took the case away from the jury and directed judgment for the defendant on the theory that the plaintiff was chargeable as a matter of law with contributory negligence. In. differentiating the case at bar from the rule laid down in Turtenwald v. Wis. Lakes I. & C. Co. 121 Wis. 65, 98 N. W. 948, the court gave as one reason therefor that the vehicle in this case causing the injury was “upon a pathway which was definitely fixed by the course of the street railway tracks from which it could not deviate in order to avoid injury, and that the very presence of those tracks constitutes a warning or admonition of probable danger.”

The Dinan Case, supra, disposes of the situation of a person whose work requires him to be upon the highway and in the path of such street ears, which cannot, as in the case of' the wagon in the Turtenwald Case, deviate from their path. Had that decision, holding as it did that one lawfully working on the highway and in the path of a street car is not required to keep the same lookout as the traveler unnecessarily driving along the track, been before the trial court-, it might well be that the trial court would have held that it was proper for the jury to determine whether or not the plaintiff in this case failed in the ordinary care required of him under the rule recognized in that case. I think both the plaintiff and the court below should have an opportunity to have this case tried and disposed of under the view taken by this court of the respective rights of plaintiff and defendant as indicated in the Dinan Case.