130 Wis. 137 | Wis. | 1906
Motormen in charge of electric cars are required, in the exercise of ordinary care, to keep a proper lookout as to the tracks and the streets upon which the cars are-operated to avoid collision with persons and vehicles on the street. In addition to his duty of operating and managing the car and keeping a proper lookout along the track, he must observe the streets adjacent to the track sufficiently to enable him to ascertain' whether persons are approaching or are about to approach the trade, and, if such persons are in danger of being struck by the car, he must do all that an ordinarily careful and prudent motorman would do to avoid doing-injury to any such person.
“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 approaching car, or being so circumstanced as to suggest a probability of such approach, than in case of adults.” Forrestal v. Milwaukee E. R. & L. Co., 119 Wis. 495, 91 N. W. 182; Anderson v. Minneapolis St. R. Co. 42 Minn. 490, 44 N. W. 518.
If the situation here presented is such that the motorman could have seen the plaintiff approaching the car at a distance sufficient to have enabled him, by the exercise of ordinary care, to have stopped the car before the- collision, then his failure to observe plaintiff cannot relieve the company
Error is assigned upon' the verdict finding that defendant "was negligent in requiring the motorman on this car to perform the duties of conductor in addition to those of motorman. In the case of Dahl v. Milwaukee City R. Co. 65 Wis. 371, 27 N. W. 185, it was held that if street-car drivers were required to' perform duties in addition to those required of them as drivers which materially interfered with their duty •to prevent accidents by keeping a proper lookout for people approaching the track, and if it appeared that an injury resulted which would not have occurred but for the performance of such additional duties, then such 'management of the business constituted negligence. There is no dispute but that the motorman of this car performed the additional duties of conductor. There is some evidence tending to show directly that the motorman was engaged in looking after the payment •of fares when he should have observed the plaintiff attempting to cross the street. Other facts and circumstances regarding the conduct of the business are corroborative of the fact that imposing the conductor’s duties upon the motorman interfered with his performance of his duties as motorman. This evidence made the question of defendant’s negligence in this respect a proper inquiry for submission to the jury. It was further found that the negligence of the defendant in not keeping a proper lookout, and the negligence of imposing conductor’s duties on the motorman, were the proximate -causes of plaintiff’s injury. This is claimed to be error, because it was not ascertained to which of the two grounds of negligence found the accident was attributable. It seems apparent that the jury found that both acts of negligence shared in producing the result. Since defendant is charged with the ■consequence of both negligent acts and the result is the nat*
Appellant’s contention that the court erred in not instructing the jury specially that, if the plaintiff suddenly and unexpectedly attempted to cross the track, then such conduct would be the proximate cause, is answered by the finding of fact in the special verdict, and the evidence supporting it, that the motorman could have seen him approaching. It appears that plaintiff pursued a continuous course from the time he was seen on the street, that he approached from the southwest corner of Eighth street and the avenue, and thence proceeded northeast to where he was struck by the car. This shows that the motorman would obviously have been apprised of his approach to the track had he exercised due care in observing this part of the street. Appellant did not specially request such instruction. If it deemed it necessary and proper such request should have been made in writing. The instructions given upon this branch of the case were sufficient, and properly covered the case as presented by the evidence. Further criticism is made of that part of the court’s charge to the jury stating that if the jury found the defendant guilty of negligence in the conduct of the business, in requiring the motorman to perform the duties of conductor, then it remained to be determined whether it was “a proximate or the proximate cause” of the injury to plaintiff. In connection with this instruction the court correctly defined to the jury
These considerations cover all the material questions presented by the record and call for affirmance of the judgment.
By the Court. — Judgment affirmed.