139 Wis. 433 | Wis. | 1909
The plaintiffs in this action, founded upon alleged negligence of defendant, had a special verdict finding the motorman in charge of defendant’s car negligent; that this negligefice was the proximate cause of the injury to plaintiffs’ horses, wagons, and harness; that the plaintiffs were free from contributory negligence and their damages were $450. Considering the commonplace nature of the action and the amount involved, the litigation seems to have been conducted with such zeal, industry, and pugnacity from the selection of the jury to the final taxation of costs as to present an unusual number of disconnected questions, necessitating to cover these questions an opinion of some length. We-shall be obliged to rule upon some of them without discussion.
1. Drawing the jury for the trial of the cause, as provided for in ch. 295, Laws of 1905, as amended by ch. 272, Laws of 1907, after the commencement of the action and after issue joined but before filing the summons or complaint, was, to say the least, not error of which appellant, after having participated in the selection of that jury, can complain. We are inclined to the opinion that the fact of an action pending and at issue gives the right to demand and obtain in the manner provided by these statutes the jury there mentioned,
2. Error is assigned because of the refusal of the trial court to discharge the jury and grant a venire de novo upon the ground that the trial commenced on April 29, 1908, and was interrupted by several adjournments necessitated by the illness and death of the wife of the presiding judge, and was not finally concluded until June 6, 1908, although only six days ■of this time was spent in actual trial. It is said that during these adjournments the jurors had opportunity to see and did frequently see the street in question and points therein mentioned by the witnesses, but no actual misconduct on the part •of the jury is charged. There was in this no error prejudicial to appellant.
3. The complaint averred that plaintiffs were copartners ■and owners of two certain horse teams with wagons and harness, the defendant a corporation operating a street railway -on West Main street and elsewhere in the city of Merrill, and while the plaintiffs were lawfully traveling with said teams and wagons westwardly on West Main street the motorman •of defendant in charge and control of an electric street railway car also moving westwardly in said street approached the teams from the rear and “negligently, carelessly, unnecessarily, repeatedly, and continuously sounded the gong on said -car in a loud and noisy manner,” causing the rear team to become frightened. The motorman saw that the team was frightened and knew that, unless he desisted from rapid approach and from sounding of the gong, he would cause the team to get from the control of the driver and do serious damage, but, notwithstanding, “carelessly and negligently continued to sound said gong and make a loud noise, and negligently and carelessly failed to stop or to slow up or place the ■car under control, but negligently, carelessly, and noisily ran
It is contended that this complaint is based upon a charge of gross negligence, hence the trial court erred (1) in not so construing it; (2) in overruling the objections to the reception of evidence of negligence; (3) in not granting a motion for a nonsuit; (4) in not granting defendant’s motion for a directed verdict; (5) in not correcting the verdict and rendering judgment in favor of the defendant on the verdict as corrected. But all these alleged errors disappear if the complaint merely charged ordinary negligence. We find no charge of gross negligence in the complaint. All the acts of the motorman complained of are charged to have been done “negligently, carelessly,” etc., not intentionally. True, it is averred that the motorman knew the probable consequence of approaching rapidly ringing his gong, but that is not enough under the rule relative to gross negligence adopted by this court. Nothing is more common in ordinary negligence cases than to submit a question to the jury asking whether the defendant knew the consequences of his act. The disposition has been to err in such case by including in one question whether the defendant knew or ought in the exercise of ordinary care to have known these consequences. Du Cate v. Brighton, 133 Wis. 628, 114 N. W. 103; Howard v. Beldenville L. Co. 134 Wis. 644, 114 N. W. 1114. But to constitute gross negligence the act or omission causing the injury must itself have been wanton or wilful. Wilson v. Chippewa Valley E. R. Co. 135 Wis. 18, 114 N. W. 462, 115 N. W. 330. Illustration: The consequence of ringing the bell may be to frighten one team, but it may be required at the place by law or at the same time necessary to warn another. This group of alleged errors is therefore not effective for reversal.
4. Appellant next contends that, assuming the complaint
In the city of Merrill, Genesee street, fifty feet in width and running north and south, crosses West Main street, sixty feet in width and running east and west, and this crossing we take for a starting point. All points referred to, all acts of negligence, and all injuries in question occurred in West Main street west of this point and while the car in question and plaintiffs’ teams were traveling west on West Main street. At this point there is on the northeast corner Wenzel’s hardware store, variously referred to by witnesses, on the northwest corner Farkvam’s saloon or hotel, a like point. Next to this on the west is Haase’s, a like point. One hundred and thirty feet west from the west boundary of Genesee street k the east boundary of Wright street, which coming in from the north connects at right angles with, but does not cross, West Main street. Thirty feet further west along West Main street is the west boundary of Wright street, and here at the northwest corner of these two streets is a building referred to by the different witnesses as the Commercial Hotel, Thatcher’s Hotel, and Tremont House. One hundred and ninety-two feet west of the west line of Wright street brings us to the east line of Juve’s house, and a few feet farther west to
The foregoing statement is made upon the facts with inferences therefrom which the jury might and probably did by their verdict find to be true. Erom this we think it is apparent that the only negligence which can be charged against the defendant consists in the motorman unnecessarily continuing to sound the gong after he saw the frightened condition of the rear team of horses or in failing to stop or slack the speed of his car under the same circumstances. The case is very close on this point; but the witness Miller testified:
“The street car was going along at full speed and the motorman was ringing the bell. It got up to the team, and it, the street car, did not lessen its speed when coming up to the team.”
While a street railway company is not liable for damages-caused by a horse taking fright at the sight of a street car in motion, or at the usual noise made by such car in motion, or at the ordinary and proper sounding of a gong or ringing of a bell on such car, yet the motorman or driver is required to-keep a proper lookout to avoid collision with persons or vehicles also using the streets, and to do all that an ordinarily prudent and careful person under like circumstances would do to avoid injuring others lawfully using the streets. Glettler v. Sheboygan L., P. & R. Co. 130 Wis. 137, 109 N. W. 973. As was said in Bishop v. Belle City St. R. Co. 92 Wis. 139, 65 N. W. 733, the mere fact that the horses took fright, at an approaching car gives no right of action. In the instant case the plaintiffs by pleading and proof do not, however, rely upon any such ground of liability. What is claimed here and what the evidence tends to support is that the motorman, knowing that plaintiffs’ horses were frightened by these usual and ordinary sights and sounds and that there was a liability of injury resulting, continued to approach the-frightened team and to run alongside of it or just behind it continuously sounding his gong and without slacking the speed of his car, and without proper regard for the rights of
The close point on the evidence is whether, considering the-shortness of the time that the ringing continued and the shortness of the distance traversed, the motorman could be held to have been negligent in failing to slack his speed or stop ringing his bell. Some little time for consideration and decision-must be allowed him, no doubt, but on the whole there seems to be sufficient evidence to take the case to the jury. On the-point that the condition of the team running away was so-visible to the motorman that he must have known the cause of their fright, and that he should either have slacked the speed of his car or stopped ringing his bell, or both, before he attempted to approach and run alongside of the runaway horses,, there are many cases affirming this ground of liability. Oates v. Metropolitan St. R. Co. 168 Mo. 535, 58 L. R. A. 447; and see cases collected in a note to Greene v. Louisville R. Co. 7 Am. & Eng. Ann. Cas. 1126, 1127, 1129; also in note to Union P. R. Co. v. Cappier, 66 Kan. 649, 69 L. R. A. 513; 2 Thompson, Comm, on Neg., §§ 1419, 1420; Clark, Street Railway Acc. Law, § 114; Heer v. Warren-Scharf A. P. Co. 118 Wis. 57, 94 N. W. 789.
5. Appellant next contends that the finding of the jury that the negligence of the motorman was the proximate cause-of the injury in question rests- upon conjecture only, because no one can say that the injury in question would not have happened if the motorman had desisted from his speed and noise or that it did happen because of such failure to desist. We cannot agree with this refinement. When a probable potential cause is shown which may be identified as the proximate cause and made to answer the legal definition of proximate cause by inferences of fact from direct or circumstantial evidence before the jury, the latter may identify this as a proximate cause, although strict logic might discover other
6. The defendant requested the court to instruct the jury “that ‘ordinary care,’ as used herein and wherever used in these instructions and in the verdict, means that care which ■ an ordinarily prudent person ordinarily uses under the . same or similar circumstances.” Instead the court instructed the jury, “ ‘ordinary care,’ as used in these instructions, means that care which an ordinary prudent person ordinarily -exercises under the same or similar circumstances.” This ■error assigned is based upon the fact that the court used the adjective form “ordinary” to qualify or modify the adjective “prudent,” instead of the adverbial form “ordinarily.” This is a very common error, not only in conversation but in writing, and the writings of some of the great masters of the English language are not without many slips of this kind, a collection of which may be found in text-books on grammar, •composition, and rhetoric. But such errors are not ground for reversal unless the jury were misled thereby. In the instant case the jury must have understood the word “ordinary,” notwithstanding its form, to qualify or modify the next succeeding word. The probability is that they understood the expression in the latter sense. The departure from the correct rule is not so great here as that in Reffke v. Patten P. Co. 136 Wis. 535, 117 N. W. 1004. The case in this respect is ruled by Nass v. Schulz, 105 Wis. 146, 151, 81 N. W. 133, and Pumorlo v. Merrill, 125 Wis. 102, 107, 103 N. W. 464. And see Anderson v. Chicago B. Co. 127 Wis. 273, 281, 106 N. W. 1077, and cases.
7. The action was commenced more than a year after the injury and no notice of the injury was given, and the defendant on the trial asked leave to amend its answer by pleading
8. Error is assigned in refusing to instruct the jury that there was no evidence of negligence on the part of the defendant up to the time the car caught up to or reached the rear-team. Eor reasons already given this request was properly refused.
9. Error is assigned because the court refused upon proper-request to instruct the jury that the defendant was not negligent because the horses became frightened from noises which' are usual and ordinary and incident to the operation of street railway cars, and, applying this, that if the jury found it to-be the fact that the motorman sounded the gong for a proper purpose and in the usual manner, this was not negligence, but one of the noises incident to operation. This was a proper-charge under the facts of the instant case, but we consider it covered by the charge given in several different forms, particularly the following:
“The defendant or its motorman cannot be deemed negligent in controlling and operating a car merely because horses-become frightened by reason of the ordinary, usual noises incident to the moving and operating of cars, or because horses become frightened by sight of the street car, or by necessary sounding of a gong on the car in the ordinary, usual manner, or because horses become frightened at the usual, ordinary speed of the car while it is moving, being operated with reasonable and ordinary care, along its track. . . . Ordinary care does not require that the motorman in charge of' a street car shall stop a street car or slow it up merely because a team traveling on a street shies or shows signs of uneasiness. . . . Yet if it is reasonably apparent to the motorman that the team of the traveler on the street has either-gotten beyond- the control of the driver or is about to get be*446 yond Ms control, so that it is apparent that an injury and damage is probable and reasonably certain if he, the motorman, does not slow up or stop his car or put it under control, then you may find that ordinary care would require the motonnan under such circumstances to either slow up or stop the car or place it under control, if the circumstances permit, and that if he fails to do so he may be deemed not to have exercised ordinary care, provided always that you are satisfied an ordinarily prudent person would ordinarily so do under the same or similar circumstances.” ■ ■
Substantially the same rule was given with respect to the ■continued ringing of the bell. These instructions fairly covered the requests of the defendant on such points; hence there was no error in refusing the requests.
10. Error is assigned in rejecting evidence tending to prove that the injured condition of three of the four horses arose from overwork hauling heavy loads on a hard road during the six days next succeeding the runaway in question. This would seem to be quite a serious mistake had it not been that the same witness was permitted to testify fully on this point ■on cross-examination without objection. Under these circumstances the error was obviated.
11. After the accident in question the horses concerned appeared to have been engaged in heavy work for the next succeeding six days. Later on three of them upon which there were no serious visible wounds or injuries, and which were-not shown to have been thrown down or to have collided with anything, developed, according to the testimony on the part of the plaintiffs, sickness materially affecting their ability to work and their market value, which sickness it is unnecessary to describe here in detail. Error is assigned in permitting witnesses to testify that in their opinion such sickness and disability was caused by the accident in question, but we are unable to consider this assignment of error because no sufficient exception was taken to the admission of this evidence.
12. In addition to evidence tending to show a depreciation
13. The items of costs objected to and brought to the notice of this court by appellant’s brief, consisting of drafting requests for instructions and drafting affidavits on motion to-modify an order, and drafting notice of examination of adverse party, drafting an order denying a motion to limit the examination of adverse party, attending motion out of term to limit the examination, and attendance on examination of' witnesses out of court, were properly allowed. Sec. 2921,. Stats. (1898) : “Necessary entries, pleadings and proceedings in an action according to the practice of the court.” It. follows that the judgment should be affirmed.
By the Court. — Judgment of the superior court affirmed.