296 N.W. 609 | Wis. | 1941
Action by Edward Schmidt against the Milwaukee Electric Railway Transport Company to recover for injuries sustained by plaintiff in a collision between his automobile and *221 a streetcar of the defendant, commenced June 7, 1938. From a judgment in favor of the plaintiff entered January 22, 1940, the defendant appeals.
The accident involved occurred at a highly dangerous intersection of three through streets. One street extends north and south, another east and west, the third diagonally across the intersection. On the diagonal street are double streetcar tracks, the easterly track for northwest traffic, and the westerly for southeast. On the east-and-west street, Capitol drive, and the diagonal street, Atchison avenue, the traffic was controlled by green and red automatic light signals. The green lights were to open traffic, the red to stop it. There were no lights on these two streets to warn of a change of traffic. The green and red operated simultaneously. The instant the green light showed on one of these two streets, the red showed on the other.
The plaintiff was driving east on Capitol drive. The streetcar with which he collided was going northwest. It was a single car. At the same time this streetcar was traveling northwest in the intersection a two-car train of the defendant was traveling southeast. It is without dispute that the train entered the intersection on the green light. It is also without dispute that the light changed from red to green in plaintiff's favor before he entered the intersection. He was at the east end of a safety-island platform when the green light showed. From this point he traveled approximately one hundred feet before reaching the point of collision. He was traveling twenty to twenty five miles per hour, and slackened his speed a little to allow the train to clear his way. The train cut off his view toward the streetcar on the far track. It also cut off the view of the motorman toward the plaintiff. The motorman had stopped for a passenger to alight at a safety island. The car traveled approximately one hundred and twenty feet from the place where it stopped to where the collision occurred, and the highest speed reached was seven *222 miles per hour when the automobile came in sight behind the train. The motorman and the plaintiff saw each other simultaneously. The motorman slammed on his brakes and applied sand immediately and stopped his car within twenty feet. The plaintiff veered left immediately but neither could avoid the collision. Two vehicles, a truck and an automobile, ahead of it headed east on Capitol drive were stopped in the south lane of traffic when the plaintiff passed them in the middle lane to enter the intersection. All these facts are without dispute.
The only point of dispute is between the motorman and the driver of the automobile ahead of the truck. The latter testified that when the streetcar went by the rear of the train the light was red against the car; that he saw the streetcar before it started up, and that was why he kept his automobile standing when the light went green for the traffic on Capitol drive; that was why he did not go through on the green light; that he did not start through because he saw the streetcar going through on the red light; it approached the intersection before the light changed; he could see the streetcar was going ahead against the light. The witness saw the streetcar before the train shut off his view of it, and also saw its trolley over the top of the car. He knew there was going to be a collision. The motorman testified that when he entered the intersection the green light was showing.
By special verdict the jury found that the motorman was causally negligent as to lookout, management and control, and entering the intersection on the red light. It found the plaintiff causally negligent as to lookout, but not negligent as to management or control, speed, right of way, or passing an automobile at an intersection. They attributed eighty per cent of the negligence involved to the defendant, assessed the plaintiff's damages at $4,500, and judgment went for eighty per cent of this sum under the comparative-negligence act, sec. 331.045, Stats. *223
As appears from the foregoing statement, the plaintiff recovered on the finding of the jury that the motorman was negligent as to lookout, management and control, and entering on the red light while the plaintiff was only negligent as to lookout. We consider that the findings of the jury that the motorman entered the intersection on the red light, and that the plaintiff was not negligent as to right of way are contrary to the undisputed physical facts. The automobile was traveling approximately three times as fast as the streetcar. The lights changed simultaneously. If the light went red against the streetcar before it entered the intersection the streetcar must have traveled farther than the plaintiff did after the light changed and before the collision occurred, which is physically impossible with the automobile traveling three times as fast as the streetcar. It is therefore plain that the light was green for the streetcar when it entered the intersection and the streetcar therefore had the right of way over the automobile. Watermolen v.Fox River Electric Railway Power Co.
We are also of the view that if the motorman was negligent as to management and control, the plaintiff was equally negligent in that respect. Both entered on the green light, but if one was negligent in the respect mentioned, so was the other. If the motorman was under obligation to so manage and control his vehicle as to avoid collision with an automobile that might be passing behind the train, so was the plaintiff under equal obligation to so manage and control *224 his automobile as to avoid colliding with a streetcar that might be passing behind it. The plaintiff's negligence in this respect, if any there was on the part of either, would plainly seem to be the greater, as the streetcar had the right of way over the automobile. It cannot be said the motorman's negligence as to lookout was any greater than plaintiff's in that respect. The plaintiff's negligence in this respect would seem to be greater than the motorman's as the plaintiff could see the trolley of the streetcar over the top of the train while the motorman could not see the automobile through it.
For the reasons stated the judgment must be reversed and the complaint dismissed.
By the Court. — The judgment of the circuit court is reversed with directions to enter judgment dismissing the complaint.
FRITZ and MARTIN, JJ., dissent.
