Forrestal v. Milwaukee Electric Railway & Light Co., 119 Wis. 495

Forrestal v. Milwaukee Electric Railway & Light Co.

119 Wis. 495 | Wis. | 1903

MaRshall, J.

The legal principles applicable to the foregoing statement are too familiar to warrant taking time or space to state them. It goes without saying that it is the duty of a motorman in charge of an electric Street car to keep a careful lookout ahead upon and in the vicinity of his track so far as the performance of his other duties will reasonably permit, to the end that he may avoid injuring any person that may accidentally or otherwise place himself in a dangerous situation in the pathway of such car; that the degree of diligence in that regard, in order to come up to -the *499standard of ■ ordinary care which the law requires, varies with time, place, amount, and character of travel upon the street, opportunity for the motorman to see persons using the street for ordinary travel as they approach the track and for such persons to see the approaching car, and all circumstances naturally calculated to increase the hazard of injuring such persons. The care thus indicated, in law, charges the motorman with the duty to usp ordinary care to avoid dangerous consequences from causes within his knowledge, and from those which he might, by the exercise of proper vigilance, have knowledge of as well. He is hound not only to keep the careful lookout indicated, but to observe persons approaching the track, or so circumstanced as to suggest a reasonable probability of such approach unconscious of danger, whom, consistent with proper attention to his general duties, he might observe, and to handle his car, so far as ordinary care will permit under all the circumstances, so as not to injure them. Obviously, those principles require a motorman at a street crossing to exercise greater care than between crossings, and much more care in case of very young children approaching the track unconscious of an appi*oaching car, or being so circumstanced as to suggest a probability of such approach, than in case of adults. The citation of decided eases in respect thereto, as regards the case before us, would not be of any great benefit. Hone can be found, we venture to say, characterized by all the material elements present in this case. Eor that reason we shall content ourselves with a brief reference to principles, omitting entirely the citation of cases. That class of cases where, in each, a child playing near the track at some point other than at a street crossing suddenly ran in front of a car; and that where, in each; a child standing by the track at a safe distance therefrom looking at an approaching car, and notwithstanding his attitude did not suggest a purpose to go upon the track, he suddenly did that, and so near the car that the exercise of ordinary care on the *500part of tbe' motorman after opportunity existed to see tbe child in a situation of danger did not enable such motorman to avoid injuring tbe child; and the class in each of which the child, at some point between crossings, suddenly emerged from behind another car or a team, or some, object, interfering with the motorman’s seeing him until the dangerous situation was created; and that where in each the motorman observed a child at a crossing approaching the track, watching the car and apparently intending to avoid getting in its way, but who suddenly ran in front of it; and others that might be mentioned, where it was held that the motorman was free from actionable negligence, neither rule nor throw any light upon the controversy in this case. To refer to and discuss them would be more liable to confuse than to solve, the question raised by the appeal.

There can be no doubt that it was the duty of the motorman, as his car approached the crossing, to observe children near the track in such an attitude as to suggest a probability of their placing themselves in the way of the car, and to use all reasonable care to avoid injuring them in the event of that probability changing to a certainty. It is no- excuse for him, as we have seen, that he did not see the little girl as she was waiting for the east-bound car to pass. The evidence tends to show that he had a good opportunity to see her so circumstanced, apparently unconscious of the approach of his car, when he was not more than about 100 feet from the east side of the street crossing, and 160 feet from her, and when it was his duty to take a view of the crossing, so far as he reasonably could, and to see whatever was observable by the exercise of ordinary attention to his duties, calling, or which might probably call, for action on his part in respect to controlling the movements of his car. If a jury should find, as-they might properly from the evidence, that had the motorman performed his duty to observe the appearances at the crossing as he approached it, he would have seen the little *501girl in the; attitude of waiting for the east-bound car to pass her, apparently unconscious of the approach of the westbound car, and suggesting the probability of her attempting to cross the street as soon as the east-bound car passed her, and when she could not see the west-bound car nor the motorman see her till too close upon her to avoid running her down unless during the time she was obscured from his view by the east-bound car he prepared to avoid such danger, could they reasonably find therefrom the further ■ fact that it was a breach of the motorman’s duty as regards the safety of the child to operate his car regardless thereof ? Assuming, as we must, that a jury might properly find the primary facts mentioned, was the trial court warranted in holding as a matter of law that the motorman was not-guilty of any actionable fault ? It seems that an affirmative answer is clearly due to the first proposition and a negative answer to the second, and that the trial court was clearly wrong in talcing the casé from the jury. Evidently such court did not give due significance to the fact that the motorman ought to have seen the little girl as she was in the attitude of waiting for tlio east-bound ear to pass her before his line of vision was cut off by said car; nor due significance to the fact that her movements, situation, and attitude reasonably suggested a probability of unconsciousness of the near approach of the west-bound car, and that she purposed proceeding across the tracks as soon as the east-bound car passed her. The circumstance present in many cases where the motorman was held free from fault, of a child, suddenly and without any reasonable ground to expect it on the part of the motorman, emerging from obscurity and rushing into danger, did not exist here. Here, while the child suddenly emerged from behind the east-bound car and ran immediately -in front of the car that injured her, a jury would be warranted in saying, as we have indicated, that the motorman had good ground to expect that very event. If he had such ground, his failure to make any provision to *502avoid the dangerous consequences which might otherwise he likely to occur might well be found by a jury to be incow sistent with the exercise of ordinary care upon which the law would pronounce judgment of actionable negligence.

The judgment must be reversed and the cause remanded for a new trial.

By the Court. — So ordered.