Dering v. Milwaukee Electric Railway & Light Co., 171 Wis. 8

Dering v. Milwaukee Electric Railway & Light Co.

171 Wis. 8 | Wis. | 1920

Yinje, J.

Plaintiff contends (a) that there is no evidence to sustain the jury’s finding of contributory negligence and (b) errors in instructions to the jury. From the foregoing statement of facts it will be seen that even upon plaintiff’s own contention the car that hit him had' run at least fifteen feet from where it stood discharging passengers before it ran into him. In so doing the testimony shows it had run at an average speed of not more than three miles per hour. 'He testified that he ran his auto from four to eight miles per hour and had it under perfect control though the street was wet.- If he went- four miles per hour he would be eighteen feet from the car track when the street *10car started up. If he went faster he would be further -from the car track. But assuming he went only four miles per hour, he would have plenty of space to stop his car in after the street car started up. If he went faster than that he. would have more space, and if the collision occurred further north, as the jury well might find, the street car had been under way a longer time and he would have a better opportunity to stop. It is true he looked to the north and saw a car standing there discharging passengers, but that was farther away. When he reached the zone of danger from the north-bound car it was his duty to look again to see if it had started. Had he done so he could have seen it in motion in time to avoid a collision. Either he did not look or looked and took his chance to cross ahead of it. In either case the jury could find him guilty of contributory negligence. The fact that the street car ran into him and not he into it is of no consequence. Negligence is not necessarily lacking in the one who is being run into.

The instruction's complained of related to questions that were answered in favor of plaintiff, and error, if any, therein cannot be invoked to reverse the judgment on his appeal.

The stopping of a street car at a customary place for discharging and taking on passengers is no invitation to the traveler to cross ahead of it. If he is so situated that the car can safely start and safely continue if he yield the right of way and can safely do so, the car may proceed upon its trip, otherwise street-car traffic might be blocked indefinitely by travelers on the street or sidewalk. The case of Canning v. C. & M. E. R. Co. 163 Wis. 448, 157 N. W. 532, relied upon by plaintiff, was where a car stopped in the' middle of the block, and it was held that such stopping might be construed as an ‘invitation to a man driving a team out of an alley to cross ahead of it.

By the Court. — Judgment affirmed.