151 Wis. 170 | Wis. | 1912
The plaintiff’s intestate was driving a horse attached to a milk wagon southward on Twentieth avenue in the city of Milwaukee at about 6 a. m. July 1, 1908. The wagon was covered and the intestate was standing on the westerly or right-hand step of the wagon. Just as the wagon crossed defendant’s northerly track, running east and west on Greenfield avenue, one of defendant’s street cars, west bound, ran into the rear of the wagon, tipping it over, and causing the death of the intestate. The plaintiff claims that the evidence was such as to justify the conclusion of gross negligence on the part of the defendant’s motorman, but the trial court
As opposed to this mass of evidence, which entirely excludes the idea of wanton or reckless disregard of life on the part of the motorman, there is the testimony of one witness for the plaintiff, who stood on the sidewalk some 200 feet away, and who testified that he did not hear the gong nor see the motorman attempt to stop the car, and of another witness, a block further away, who thought the speed of the car was about the same all the way until the wagon was struck. If the motorman sounded the gong as soon as he saw the wagon and attempted to stop the car at once, there can be no reasonable claim of gross negligence, even if in the exercise of due care he ought to have seen the wagon earlier.
By the Garni. — Judgment affirmed.