Kuchler v. Milwaukee Electric Railway & Light Co.

157 Wis. 107 | Wis. | 1914

KeRWIN, J.

The main question presented here is whether there was sufficient evidence to carry the case to the jury on the issue of gross negligence of the motorman operating the car. Under the decisions of this court, in order to make a case of gross negligence it must appear that there' was wilful misconduct on the part of the motorman. His conduct must have been such as to suggest that he was wholly indifferent as to the safety of the occupants of the buggy, and was guilty Of such wanton or reckless conduct as is deemed equivalent to an intent to injure. Haverlund v. C., St. P., M. & O. R. Co. 143 Wis. 415, 128 N. W. 273; Bolin v. C., St. P., M. & O. R. Co. 108 Wis. 333, 84 N. W. 446; Fox v. C., St. P., M. & O. R. Co. 147 Wis. 310, 133 N. W. 19; Raasch v. Milwaukee E. R. & L. Co. 151 Wis. 170, 138 N. W. 608; Willard v. C. & N. W. R. Co. 150 Wis. 234, 239, 136 N. W. 646; Barlow v. Foster, 149 Wis. 613, 136 N. W. 822.

To constitute gross negligence the act or omission causing the injury must itself have been wanton or wilful. Gould v. Merrill R. & L. Co. 139 Wis. 433, 121 N. W. 161; Rideout v. Winnebago T. Co. 123 Wis. 297, 101 N. W. 672; Schug v. C., M. & St. P. R. Co. 102 Wis. 515, 78 N. W. 1090.

At the time of the injury the defendant was operating a double-track street railway on Wells street from Eleventh street westward. Oars running north on Eleventh street entered a curve and swung westward on Wells street. The intersection of Eleventh and Wells streets is a transfer point. The accident occurred at the intersection of Twelfth and Wells streets, one block west from Eleventh street. The car which collided with the buggy in which deceased was riding came north on Eleventh street, turned west on Wells street, then continued west on the north track on Wells street. The deceased was riding with his grandfather in a buggy going south on Twelfth street. The horse was going on a slow trot as it reached Wells street, but slowed up or stopped on the crossing when about twenty feet from the north street-car track on Wells street, then proceeded slowly, and when about four or five feet from the track the car which collided with the buggy was about twenty feet east of the place of collision. The horse and buggy proceeded onto the track immediately in front of the car and the car struck the front wheel of the buggy. The horse was under perfect control of the driver. It appears from the undisputed evidence that deceased was in danger only two or three seconds before the collision. It also appears from the evidence that when the horse got within four or five feet of the track the driver struck it with the reins and tried to get across the tracks quickly. There is some conflict in the evidence as to the speed of the car, but it is established that it was going at a “pretty good speed.”

It is quite clear from the evidence that the horse stopped or slowed up to a walk about the time of entering on Wells street, and afterwards, when only a few feet from the north track, the driver urged the horse onto the track immediately in front of the approaching car with the expectation of getting across ahead of it.

In view of the speed of the car and the horse just before the collision, the wilful misconduct of the motorman, if any, upon the undisputed evidence must have occurred within two or three seconds before tbe collision. There is no evidence which would have justified the jury in finding that it occurred during that time. The motorman had a right to presume that the driver of the horse, though only a few feet from the track, Avould stop and not make an effort to cross immediately in front of a rapidly approaching car. Stafford v. Chippewa Valley E. R. Co. 110 Wis. 331, 85 N. W. 1036; Watermolen v. Fox River E. R. & P. Co. 110 Wis. 153, 85 N. W. 663; McCabe v. Milwaukee E. R. & L. Co. 156 Wis. 621, 146 N. W. 806.

In principle the instant case is quite similar to McCabe v. Milwaukee E. R. & L. Co., supra, where the deceased attempted to cross in front of the car and was killed, and this court held that there was no evidence to support a finding of wilful misconduct on the part of the motorman. TJpon a careful examination of the record we are convinced that there is no evidence of wilful misconduct on the part of the motorman in the present case.

The case was tried on the theory that the motorman was guilty of gross negligence. It is now insisted, however, that no contributory negligence was shown, therefore a recovery may be had on the ground of ordinary negligence. This contention is made upon the theory that the negligence of the driver of the horse cannot be attributed to the deceased, under the doctrine of Prideaux v. Mineral Point, 43 Wis. 513, and other cases in this court, because it is argued that the doctrine of these cases is based upon the principle of agency, and there could be no agency between the infant, deceased, and the driver. It is claimed that, although this case was tried as one based upon gross negligence, judgment may go for respondent upon the ground of ordinary negligence, under the rule of Astin v. C., M. & St. P. R. Co. 143 Wis. 477, 128 N. W. 265. We need not consider this point, because we are convinced that the plaintiff is chargeable with the contributory negligence of the driver, the grandfather of deceased.

This action was brought by the father of deceased as beneficiary, and upon Ms death continued in the name of tbe mother. It appears that the beneficiaries, the father and mother, .intrusted the infant, deceased, to the care of his grandfather, who was driving the horse at the time of the collision. The grandfather was therefore the agent of the beneficiaries and his negligence their negligence.

Assuming, without deciding, that the motorman was guilty of ordinary negligence, the beneficiaries through their agent were also guilty of contributory negligence, therefore cannot recover. It is clear that the plaintiff here is chargeable with the negligence of the driver. Bellefontaine & I. R. Co. v. Snyder, 18 Ohio St. 399; Williams v. Gardiner, 58 Hun, 508, 12 N. Y. Supp. 612; Schlenks v. Central P. R. Co. 15 Ky. Law Rep. 409, 23 S. W. 589; North Pennsylvania R. Co. v. Mahoney, 57 Pa. St. 187; Gress v. P. & R. R. Co. 228 Pa. St. 482, 78 Atl. 810; Bamberger v. Citizens’ St. R. Co. 95 Tenn. 18, 31 S. W. 163; Paige v. N. Y. C. & H. R. R. Co. 111 App. Div. 828, 98 N. Y. Supp. 183; Chicago & N. W. R. Co. v. Schumilowsky, 8 Ill. App. 613; Baltimore & O. R. Co. v. State, 30 Md. 47.

By the Gourt. — The judgment is reversed, and the cause remanded with directions to dismiss the complaint.

SiebecKER, J., took no part.