Shenners v. West Side Street Railway Co., 78 Wis. 382

Shenners v. West Side Street Railway Co.

78 Wis. 382 | Wis. | 1890

Cassoday, J.

The only error assigned is the granting of the plaintiff’s motion for judgment upon the specal verdict, and in denying that of the defendant. The effect of the pleadings, and the substance of the several findings in the special verdict, with their respective numbers, are given in the foregoing statement. The second, third, and fourth findings negative the alleged contributory negligence of the plaintiff, and are not questioned. The fifth finding assessed the plaintiff’s damages, and, as subsequently reduced, is not questioned. The other findings all relate to the alleged negligence of the defendant. The real question is whether it appears from those findings, when taken together, that the injury was caused by the defendant’s negligence.

We fully agree with the learned counsel for the defendant in saying that “ the question arising on this appeal is *387whether the special verdict entitles the plaintiff to a judgment. If not, then the defendant should have judgment. In determining this question, the same presumption will follow each special finding which would attach to a general verdict; that is, the fact found therein is presumed to have been supported by a preponderance of evidence, and to have been established to the satisfaction of the jury. Each finding of the special verdict will control as to the particular fact found therein, as against any other finding upon other issues, the same as it would control in case of inconsistency with a general verdict.” A verdict is a declaration of the truth as to the matters of fact submitted to the jury. This is true of a special verdict as well as a general verdict. However many separate questions a special verdict may determine, it is nevertheless returned as a whole, and, as such, is a unit. Ryan v. Rockford Ins. Co. 77 Wis. 611; Treat v. Hiles, 75 Wis. 265. Of course, two separate findings in conflict with each other, substantially upon the' same specific fact, would nullify each other; so the finding of a. specific fact inconsistent with a more general finding upon the same subject, will, to the extent of such specific fact, cut down and limit such more general finding, In other words, some findings may be very broad and comprehensive, while others may be very narrow and specific, and hence of minor importance.

In the case at bar the first finding is very broad and comprehensive, and covers every phase of the driver’s negligence, taking into account the condition of the street, the extent to which it was used, the steepness of the grade, and all the facts and circumstances of the case bearing upon the question. In the language of counsel, above quoted, the- fact therein found “ is presumed to have been supported by a preponderance of evidence, and to have been established to the satisfaction of the jury.” Among the facts thus presumed to have been established by the evidence, *388were, the condition of Clybourn and Clermont streets being out of grade with the railway track at the crossing in question ; the extent to which those streets, as public highways and thoroughfares, were used by citizens passing and re-passing ; the steepness of the grade, and whether the condition of the car prevented its being stopped with reasonable certainty or dispatch or within a proper and reasonable distance, as alleged and indicated in the foregoing statement. As indicated, the real question is how much is to be eliminated from that general finding by other specific findings bearing upon the question of the defendant’s negligence; and whether, after such eliminations, there is still enough left to support the judgment.

The sixth finding is a negative. It is simply to the effect that the car was not being driven at an ordinary, usual, and moderate rate of speed before and at the time of the accident. That would be equally true if it were then being driven up a steep grade excessively slow, or, as the inferences seem to be, down a steep grade excessively fast. That finding, therefore, in no way militates against the first finding, but inferentially supports it.

The seventh finding is to the effect that at the time the driver first saw the child, “ or could have seen him, in the exercise of proper care,” the car was about ninety feet west of the plaintiff at the east crossing. This does not determine whether the driver in fact saw the child, but simply that when the car was ninety feet west of the plaintiff at the east crossing, he did see him, or could, if he had been in the exercise of ordinary care. Ror does it determine the location of the child at the time, except that he was at the east crossing. That finding would be equally true if the child was, at the time, at the outside edge of Clybourn street, or within two or three feet of the railway track, or at some point between. Ror does it determine whether the child was, at the time, standing or walking, nor, if walk-*389mg, which way he was walking. All of those things must have been made plain to the jury by the evidence; and we may fairly assume that they were fully considered by them in answer to the first question submitted. The sole purpose of the seventh question was to have the jury determine the distance the car was from the child, when he came within the driver’s range of vision, had he been in the exercise of ordinary care in keeping a lookout. Having determined that the child was within such range of vision when the car was ninety feet from him, it may fairly be presumed that he continued within such range of vision during the whole of the time the car was passing over that distance; so that for the whole of that distance the driver could have seen the child had he kept a vigilant lookout.

The eighth finding is to the effect that the child suddenly started from the place where he was first seen by the driver, and ran toward the horses and the car. As indicated, the jury nowhere found that the driver actually saw the child when the car was ninety feet from him, but simply that at that time he either did see him or could have seen him. If he did see him at that time, and at or near the edge of Olybourn street, and then or soon after saw him' suddenly start and run toward the track, then the jury were justified in finding that the driver was negligent in not stopping before the child reached the track. If, on the contrary, the driver did not see the child at all until the horses were within a few feet of him, then the jury were justified in finding that the driver was negligent in not seeing the child when he could have seen him by keeping a lookout. Heddles v. C. & N. W. R. Co. 74 Wis. 239. Had the jury found that the driver actually saw the child standing in charge of some one within a few feet of the track at the east crossing, when the car was ninety feet distant, and that the child and the person in charge continued to stand there until the horses had nearly passed him, and; *390then suddenly ran in behind the horses, there would have been great force in the argument that there was an absence of negligence on the part of the defendant, or the presence of contributory negligence on the part of the person so in charge. But there is no such finding. »

It is true the ninth finding is to the effect that the child ran between the horses and the car before he could be prevented, and before the car could be stopped. But, as indicated, the driver may have negligently failed to see the child until he got within a few feet of the track and the car, and when it was too late to prevent his going further, or to stop the car before it struck him.

True, the tenth finding is to the effect that the driver did not have any reason to expect that the child would undertake to cross the street at the time. That would be equally true if the driver negligently failed to see the child until he got within a few feet of the track and the car, or if he saw him at the edge of Clybourn street when the car was ninety feet distant, and then carelessly or negligently failed to observe him further or keep any lookout for him until he got within a few feet of the track and the car, and when it was too late to prevent his going further, or to stop the car before it struck him.

True, the eleventh finding is to the effect that the defendant was not guilty of any other want of ordinary care which caused the injury, except the negligence of the driver. But the ordinary care required of the driver must, after all, be determined by the circumstances which accompanied the transaction. His vigilance was required to be commensurate with his reasons for apprehending danger. Hence the jury were bound to take into account the condition of the track, the number of citizens who were constantly or ordinarily passing and repassing on these public streets, the steepness of the grade, the facility or want of facility for suddenly stopping the car, the character and disposition of *391the Torses, and in fact all the circumstances, in order to intelligently determine what kind of speed would be careless or reckless driving, or wbat want of care in keeping a lookout, or want of vigilance in stopping the car in the presence of reasonably apprehended danger, would be negligence.

The car moved and the child moved, and the circumstances necessarily kept shifting and changing as they approached each other, and hence the case was peculiarly for the jury. The special findings must necessarily be considered and construed with reference to such shifting and changing circumstances. So considered and construed, we must hold that the negligence found in the first finding is not wholly eliminated by any or all the other special findings. This ruling is not, as we understand, in conflict with any of the adjudications of this court. While we may differ with the learned counsel for the defendant as to the significance of some of those cases, yet our principal difference here is as to the construction and effect of the special findings in the case at bar.

By the Gowrt.— The judgment of the circuit court is affirmed.