147 Wis. 229 | Wis. | 1911
The defendant challenges every finding of the jury except the one assessing damages. A brief statement of just how the injury occurred will aid in understanding the scope of such challenge. Plaintiff got off the south-bound car at West Mason street, as he claimed and as the jury found, after it stopped. He then proceeded eastward behind the car, listening for an approaching car from the south on the east track. He heard no sound of gong or bell, so he concluded to go east far enough to look south beyond the car he had just alighted from to see if a north-hound car was coming. When he was about a foot west of the east rail of the west track, the one upon which the car he had alighted from was standing, and just as he was about ready to stop to look for a north-bound car, he stumbled with his right foot, took a long step with his left foot to save himself, and another with his right foot, and then was struck by the north-bound car, resulting in a fracture of his thigh bone about half way between the hip and knee. The car did not run over him. It is quite certain that the bumper on the west side of the car
Defendant, to sustain its claim-that the evidence shows the gong was sounded, relies upon the rule that the testimony of its witnesses that it was sounded, being positive, outweighed that of the testimony of plaintiff’s witnesses, which it claims was negative merely. Lambert, the motorman of the northbound car, and Erdrnan, the conductor on the south-bound car, testified that the gong of the north-bound car, as it approached the crossing, was sounded. Opposed to this was the testimony of four witnesses on behalf of plaintiff. Miss Uronan, who was on Broadway near West Mason street and who observed the accident, said she heard no gong sounded. Anton Jiore, a passenger on the same car with plaintiff, who alighted at the Mason street crossing and was less than fifteen feet from plaintiff at the time he was struck, testified he heard no "gong or bell ring. Martin Burke, a police officer in Green Bay for eleven years, was on the north-bound car and saw the rpotorman set the brakes when the accident happened. He says he is positive that no gong was sounded, because as soon as the accident happened he remembered that fact; and the reason he remembered it was .because he had been on a number of cars causing injury and knew that the question of warning by bell or gong was an important one. He supposed the injury must have been caused by the other car because no gong was sounded on the one he was on. His hearing was good and his attention was not diverted. The plaintiff testified that he was listening for a north-bound car because he
Conceding that the testimony of Miss Cronan and of Mr. Jiore is negative merely, the same cannot be said of that of Mr. Burke and of the plaintiff, especially that of the latter. Burke’s mind dwelt upon the question of warning at the time of the accident. True, it did not begin to do so until plaintiff had been struck, but it did before the car came to a stop. So it must be fairly said that the question of warning by bell or gong was present in his mind at the time of the injury, and that his testimony that none was sounded was not negative merely. The same is true to a greater extent of plaintiff’s own testimony. He was listening for a bell or gong because he realized that it was of the utmost importance for him to do so, as a ear might be coming north at any time. He had nothing over his ears, his hearing was normal, and he was in a position to hear, and he listened and heard none. Under such circumstances, his testimony that no bell or gong was sounded rises above the level of mere negative testimony. Where the existence or nonexistence of a physical fact ascertainable by the senses is called to the attention of a witness at the time and place it is claimed to exist or not exist, and the witness is in a position to ascertain its nonexistence as readily as its existence, and he makes an observation to ascertain what the fact is, 'his testimony that it did not exist is not negative in the sense that it can be said as a matter of law that positive testimony outweighs it. Such testimony, opposed by testimony of its existence, raises an issue of fact for the jury. Van Salvellergh v. Green Bay T. Co. 132 Wis. 175, 111 N. W. 1120, and cases cited; Anderson v. Horlick's M. M. Co. 137 Wis. 569, 119 N. W. 342. Testimony can be said to be truly negative only when it tends to prove the nonexistence of a fact by reason of a mere failure to observe or remember-its existence. If it asserts an observation as to its existence and a recollection of what that observation was, a denial of its
The jury found the north-bound car was run at a dangerous rate of speed as it passed the south-bound car. The defendant takes issue with this finding, not so much because the jury has found a higher rate of speed than the evidence warrants, but because they have denopiinated such speed dangerous. The undisputed testimony shows the car was going at least as fast as cars usually go in-_the middle of a block passing from one street to another, flrhere is much evidence to show that it went faster; and it is an undisputed fact that if plaintiff was struck at the south, crossing of West Mason street, as he claims, the car went a distance of 150 feet before it came to a stop, while if he was struck .at or near the north crossing thereof, as claimed by defendant, the car passed him 120 feet before it was stopped. Tlae^notorman testified that he felt the car strike something, ant] that he then applied the brake. There was no snow on the ground, and there is no evidence that the rails were wet, or that the car was going down grade, or that the brake wTas out of order. The motorman said the slack was out of the/.brake and the power off when he struck plaintiff. UndeF "shah conditions, the fact that it required 120 feet or more in which to stop the car is, in the absence of any other adequate explanation, indicative of a high rate of speed. But assuming that the car passed the south-bound one at a rate of speédttip greater than is usual
It is not necessary to consider and determine the question whether or not plaintiff had ceased his relation as a passenger with the defendant at the time he was struck. He was on a street crossing, and his rights as a mere traveler on the street entitled him to an observance on the part of the defendant of the rule just stated. The reasons for the rule are obvious. When a car is standing still discharging passengers, those
The contention that plaintiff alighted from the car before ■it came to a full stop cannot be sustained, as there is ample evidence to support the finding of the jury. There is some conflict in the testimony as to whether or not the car was standing still when he got off from it, but even defendant’s witnesses say it was standing still when he was struck.
The negligence of the motorman found in answer to the fourth question must have consisted in his failure to ring the bell and in running his car at a dangerous rate of speed, as no other negligence is alleged or proven in the case.
We come now to what we conceive to be defendant’s main contention in the case, namely, that neither the failure to ring the bell nor the excessive rate of speed was the proximate cause of plaintiff’s injury. It is claimed that the element of reasonable anticipation of injury is wanting; that there is no
It is argued tbat tbe failure to ring tbe bell bad nothing to
Was there a causal connection between the high rate of speed of the car and plaintiff’s injury? _ Defendant’s counsel claim not. The gist of their argument is that it was plaintiff’s stumble and not the speed of the car that caused his injury; that if plaintiff had not stumbled- no injury would have resulted whether the car was traveling'fast or slow. The car might have been at the place of the accident even if it had traveled at a slow rate of speed, and plaintiff might have been injured just the same whether the car was going fast or slow. The fact that the car was at a point .where plaintiff could stumble into it did not constitute negligence. It was merely a condition that existed. It so happened that the car was there when plaintiff stumbled into'it; it might have so happened had the car been under perfect control or standing still. We quite agree with counsel that the fact that the car was where plaintiff could stumble into it shows no causal connec
“It was practically undisputed in tbe case that tbe boy unexpectedly stepped or ran in front of tbe car when only a few feet distant, and when it could not bave been stopped, nor effective warning given, before it ran over him, whatever its speed.” Page 5.
It is obvious that tbe injury resulting from being run over by a slow-moving car and a fast-moving car is likely to be tbe same. But does it follow from that that a blow from a slow-moving car is likely to produce tbe same result as a blow from a fast-moving car ? ' Can it be said that tbe impact caused by a stumble in front of a car moving at tbe rate of ten to fifteen miles per hour is no greater than that caused by a car moving three or four miles an hour ? We think not. In tbe case at bar plaintiff’s injury was not caused by bis being run over; for be was not run over. He stumbled in front of tbe bumper of tbe car and tbe blow broke bis thigh bone. It is evident tbe severity of tbe blow would be in direct proportion to
But it is urged that plaintiff’s stumble, assuming that he was not guilty of contributory negligence, was a pure accident, and the defendant should not be held responsible for the result on that account. ISTo one is seeking to hold defendant responsible for an accident. By failing to ring the bell it induced plaintiff to approach nearer the east track than he otherwise would. When near the track a stumble precipitated him upon it. So defendant’s negligence in failing to ring the bell brought plaintiff within the field of danger, and when within that field it negligently inflicted upon him a blow severe enough to break his thigh bone owing to the dangerous rate of speed of the car. The element of accident, it would seem, is reasonably eliminated, and liability made to attach to negligence and not to accident.
The jury found that the motorman negligently operated the car and that such negligence was the proximate cause of the injury. The negligence, as already pointed out, consisted in a failure to ring the bell and in an excessive rate of speed. They therefore found that these two negligent acts combined constituted the proximate cause of the injury. That two negligent acts may concur to constitute the proximate cause of an injury is well settled. Glettler v. Sheboygan L., P. & R. Co. 130 Wis. 137, 109 N. W. 973.
The finding of the jury-that plaintiff was not guilty of contributory negligence we think is supported by the evidence. The defendant claims he was negligent in not waiting till the south-bound car had passed on so that he could have an un
By the Gourt. — Judgment affirmed.