162 Wis. 515 | Wis. | 1916
Tbe plaintiff brings this action as administrator of tbe estate of J. O. Engen, deceased, to recover
The appellant argues that the evidence was wholly insufficient to sustain the finding of negligence; that the deceased was guilty of contributory negligence as á matter of law; that the court erred in permitting a former employee of the defendant to be examined as an adverse witness; and that the damages assessed are excessive.
On the question of defendant’s negligence it is argued that the only testimony of any value tending to show the rate of speed was that given by the motorman; that his evidence was to the effect that the car was not rounding the corner at a speed to exceed from five to seven miles an hour, and that it cannot be held negligence as a matter of law for a car to turn a corner at this rate of speed, because it was not shown to be contrary to the usual method of operation. There was other testimony in the case bearing on this question which was quite as important as that given by the motorman. He did not pretend to have any accurate means of measuring the rate of speed, and in fact his testimony shows that he did
The issue on the contributory negligence of the deceased raises a much closer question. Deceased had been standing on the vestibule platform while the car was going a considerable distance. There is hardly any room for saying that he went out there so as to be ready to step off the car when his place of destination was reached. The vestibule was a very small one, calculated to furnish a way of ingress to and egress from the car rather than for the purpose of carrying passengers. The door to the left side of the car was closed and a tool box was placed in front of it, which was used to
On this state of facts the question arises whether the court should say as a matter of law that the deceased did not exer-. cise ordinary care for his safety or that on the evidence a jury question was presented.
In the case of steam roads it is very generally held that it is negligence per se for a passenger to stand on a car platform where there is a seat provided inside for his accommodation. This court seems.to have approved of that doctrine, although the point was not directly before it, in Miller v. C., St. P., M. & O. R. Co. 135 Wis. 247, 115 N. W. 794. Many of the cases laying down the general rule referred to will be found there.
The situation in reference to street cars, however, is very different from that pertaining to steam roads. The trains
There are three lines of decisions bearing on this question. Some courts hold that it is negligence per se for a passenger to stand upon the platform of a street car while it is in motion if there are vacant seats inside. Other courts hold that it is always a question for the jury to say whether or not a passenger is guilty of negligence in riding on the platform of á street car. Still other courts hold that the inquiry should be and is, Did the passenger fail to exercise ordinary care? and that under most situations this is a question for the jury, but that cases may arise where negligence is so clearly established that it is the duty of the court to say as a matter of law that the passenger was guilty of contributory negligence. This we deem to be the correct rule of law. It might be said here that it fairly appears that inside the limits of the cities of Eau Claire and Chippewa Falls the interurban cars of the defendant perform the usual functions of urban street cars and that the accident in question occurred within the corporate limits of the city of Eau Claire.
The question of the contributory negligence of the deceased was here submitted to the jury and it found that he exercised ordinary care. This finding has received the ap
It is claimed that the damages, $1,800, are excessive, and they are certainly pretty high for the injury received. The deceased died from a complication of diseases not in any way traceable to the injury and not as a result of the injury itself, although there is a little expert evidence tending to show that his death might have been hastened to some extent by his fall. Error is assigned on the admission of this testimony; but in view of the fact that the court instructed the jury that no damages could be assessed for the death of the deceased, no harm was done. The deceased was at the hospital for some time and according to the evidence suffered a good deal .of pain and his disability extended over quite a long period of time, and we cannot say that the damages assessed here ' are any more liberal than many other assessments have been where the court has refused to disturb them.
'I It is not necessary to discuss the assignment of error arising out of the examination of the discharged employee as an adverse witness, further than to say that should error be conceded it was entirely harmless. We do not wish to be understood as intimating that any error was committed. We simply refrain from discussing and deciding the legal question raised.
Judgment affirmed.