The record discloses many reversible errors, most of which are violations of such plain and familiar principles of law, it is not considered that we would be justified in indulging in any very extensive discussion of them or citation of authorities. If the numerous decisions of this and other courts already in the books, on the points to which we refer, are not sufficient to prevent such obvious and plain departures from correct principles, as to some extent, at least, ruled this case in the trial court, perhaps it is useless to add to what has been said and is best to rely upon a mere correction of the errors and brief reference to elementary principles as the most effective way, in the particular jurisdiction involved, of preventing a recurrence of the mischief in the future. Trial courts must deal firmly and with courage in administering the great power intrusted to' them. Established principles of law must prevail, regardless of the condition, and regardless of the station, of parties, natural or artificial. The most humble must have the full benefit of all the wise safeguards designed in the law for the preservation of personal and property rights, and the same benefits must be as fully vouchsafed to every other party. The famed patron of justice must be blind to mere
The evidence in this case leaves no room for reasonable doubt but that, as early as the first opportunity which plaintiff and her associates had for taking a fair observation to the east, as they approached the street-car track, and when, by their own evidence, they did take such observation — giving plaintiff the benefit of every reasonable if not possible inference from the testimony in her favor — there was a clear view of such track to the east for a distance of about 350 feet, and that the horses traveled thereafter, going at the rate of some three miles per hour or approximately four and one-half feet per second, about twenty feet, before they became so frightened by the noise or sight of the approaching car, which was only a very short distance away, and was approaching, according to the verdict of the jury, at a dangerous rate of speed or about eleven feet per second. So when full opportunity for observing the car existed, and plaintiff and her associates testified that they looked east, it
So the case comes down to this: The car was in plain sight of plaintiff and her associates when she looked east. It was not more than about 100 feet away. It was not only within sight but it was strikingly so and was within hearing. The night being dark, the car an open one, with many electric lights and a headlight that sent its rays across the intersection of the streets some distance in advance, and it being on an up-grade from the crossing, it was necessarily a very conspicuous object from the point of observation at which, according to plaintiff’s evidence, she looked east along the track. Under those circumstances is it reasonable to say that such care as was testified to by plaintiff and her associates, or any reasonable care, was exercised to discover the presence of the approaching car, and that the discovery was not made ? To that there can be but one answer. Either the observation was not taken and the testimony to the contrary is false, or the car was seen and the testimony the other way was false, and the accident occurred by the driver
It follows that, — since it must be conceded that it was the duty of the plaintiff, in the exercise of ordinary care for her own safety, to see the danger that was perfectly obvious by reasonable attention to the situation, and not go upon the track in front of the car that was so near that its speed would necessarily have to be greatly slackened or it would have to stop or render collision with the wagon probable,— she was guilty of contributory negligence as a matter of law, and the trial court should have so. decided on the motion for a nonsuit, and should have so held at each subsequent occasion when the question was presented for decision.
What has been said, together with a conclusion reached which will preclude a retrial of this case, renders it unnecessary to deal with other errors; but it is considered that regard for the administration of the law in future cases justifies, if it does not call for, treatment of such errors to some extent.
In the first question the jury were asked to find whether the motorman exercised the highest degree of skill and care to avoid a collision which a careful, vigilant man would observe under like circumstances. In the instructions given as to such question the jury were informed in the main as follows:
“ The language of the question itself involves what is held to be a degree of care which ought to be exercised by an electric railroad company in the management of its cars. It is the duty of a motorman on an electric car to exercise the highest degree of care to avoid any collision or accident, especially at street crossings.”
There was more ot the same sort. If the proposition thus given to the jury as the law governing the standard of care with which a street car should be operated, as regards, the safety of travelers upon the street, has any support
The next attempt in the verdict to submit to the jury an inquiry covering wrongful conduct constituting actionable negligence was in question 4, where they were required to find whether the car, at the time in question, was run at a higher rate of speed than a prudent and vigilant person engaged in the management of such business would have run it under the same circumstances. That' inquiry was immaterial. No such standard of care was the proper test to be applied. All that has been said in respect to the first question applies to the fourth. The proper inquiry for submission to the jury, if any was necessary on the evidence,— which at least, it seems, is doubtful, since there was no controversy but that the car was stopped substantially at the place of the accident, without any injurious consequences to either the car or the wagon, indicating beyond controversy that the former was not much more than merely in motion at the time of the collision,— was whether the car was being run faster than a person of ordinary care would have run it under the same or similar circumstances. We may properly say in passing that the improbability, impossibility would be the better term, of an electric car, going several miles per hour on a down grade, colliding with a wagon and the ear stopping substantially at the point of the collision without the persons on the car being materially
The third subject of supposed wrongful conduct was submitted to the jury by the sixth question, being the one as regards whether the bell on.the car was rung continuously. That test of defendant’s duty was supposed to be material by the regulation in the street-car franchise of 1888, which required a bell on each street car to be continuously rung when the car was in motion upon the street. There seem to be three reasons why the fact found by the jury in answer to the sixth question was immaterial: (1) If the regulation in the old street-car franchise was in force as an ordinance regulating the operation of cars, in the sense of being a general police regulation enacted by the city government — and we are unable to see any reason for that view,— it was void because it was unreasonable. (2) If such regulation was a condition of the grant of 1888 and as such binding upon the grantee, reasonable or unreasonable — since the grant was accepted with the condition — the binding effect thereof as regards the subject of negligence would still have to be tested by whether it was a reasonable regulation or not, as to promoting the safety of persons traveling upon the street. (3) Defendant, at the time of the accident, was operating its cars under an entirely independent franchise in which there was no provision as regards the ringing of bells upon its cars.
It is obvious that there was no intent, by the ordinance of 1897, to ingraft upon it the provisions of the ordinance of 1888.
“ This ordinance shall be void and of no effect unless said Chippewa Yalley Electric Company is the owner by purchase, made under the authority of the circuit court of the United States of the Western district of Wisconsin or by other due and legal manner of the privileges, rights, and franchises existing by virtue of certain ordinances and of the ordinances heretofore adopted and passed by the common council of said city authorizing the construction of street railway and carriage ways in the city of Eau Claire.”
There can be no reasonable doubt but a conflict of privileges, rights, and franchises was being guarded against, and that there was no other intent by the use of the quoted language. No necessity was left m the new grant for the exercise of any rights under the old one, for the former covered the whole field. It was new and original in every respect.
Though not necessary,it is deemed proper to discuss briefly
We have now, it seems, referred to every specific subject of supposed actionable negligence covered by the verdict. It was framed to answer the calls of the complaint, and the questions discussed, evidently, were deemed to be all that were necessary on the evidence, from the standpoint of the trial court and that of counsel for respondent. In that view there was nothing for the jury to pass upon. If there can be any doubt about the case as the trial court viewed it, from what has been said, it arises from the submission of the seventh question, which was immaterial if the ordinance requiring the continuous ringing of the bell was binding upon defendant. .That question is as follows: “Was the motorman of the defendant guilty of any want of ordinary care in the manner and extent he rang the bell?” It seems that the requirement for the continuous ringing of a bell
“ You should consider the ordinance making it the duty of the street-car company to ring a bell continuously. Of course you will have determined in answer to question No. 6 whether the bell was rung continuously or not, and if you find that the bell was not rung continuously while the car was in motion between Dewey and Earwell streets, then you will have to determine whether the fact proves that the motorman was guilty of any want of ordinary care in so omitting to ring the bell.”
Obviously, if the requirements for the continuous ringing of the bell were valid — and it seems the learned circuit judge did not question that — it was not a matter for the jury to pass upon, whether the fact that there was a failure to perform that duty established want of ordinary care or not, because such failure of duty was negligence per se. If it was not a valid requirement,— and it was not, as we have seen, — there is nothing in the evidence suggesting the probability that ordinary care called for a continuous ringing of the bell. It was a clear, still night. There was no travel, to speak of, at the time. The time was such that much travel was not reasonably to be expected. It does not appear that there was any team upon the street other than the one in question. The conditions for seeing the street car for a great distance, by any person after reaching the line of Wisconsin street, were all favorable. The obstructions to the view, by a person approaching on the cross street, were not unusual. The track was somewhat on a down-grade but not unusually so,— not enough to materially interfere with the control of the car. The car itself was in perfect condition. If a jury could be permitted under such circumstances to say that ordinary care required the continuous ringing of a bell, they might do so in almost any case that is liable to arise. Nothing of the kind, we venture to say, has been
There is another reason why the finding of the jury in answer to the seventh question is not sufficient to sustain the judgment, growing out of the erroneous instructions given in regard to it. The vice of the instruction as to the standard of care required of the motorman by the first question was carried forward into this and into all the intermediate questions. Such standard was many times stated as that of a prudent person under the circumstances, instead of a person of ordinary care. True, at one place in the instruction on the question under discussion the court said that the degree of care covered by it was that of an ordinarily careful and prudent person under the same or similar circumstances, but it had previously been said, in effect, that an ordinarily careful and prudent person, as regards the conduct of defendant, by its motorman on the occasion in question, was a person in the exercise of the “highest degree of skill and care,”— a person conducting himself up to the standard of “ a careful and vigilant man ” under the circumstances; that “of a prudent and vigilant person engaged,in the management of the same business.” At the particular point in question the subject was summed up thus: “You should consider these facts in determining whether the motorman was prudent and careful in ringing the bell.” Manifestly that was all wrong. The jury should have been informed that they were required'to determine from all the evidence bearing on the subject, whether the motorman exercised ordinary care,— such care as a person of ordinary care and prudence would ordinarily exercise under the same or similar circumstances. Nass v. Schulz, 105 Wis. 146; Ward v. M. & St. P. R. Co. 29 Wis. 144; Wheeler v. Westport, 30 Wis. 392; Jung v. Stevens Point, 74 Wis. 547; Wall v. Highland, 72 Wis. 435; Hennesey v. C. & N. W. R. Co. 99 Wis. 109.
“ The driver of a private vehicle may cross the track . . . if he uses due diligence not to interfere with the passage of a car. Between street crossings the cars have the right of way superior to that of other vehicles, to be exercised in a reasonably prudent manner; but this rule does not apply to the crossing of a track at a street crossing. There neither has the right superior to the other.”
That doctrine has been fully considered and rejected by this and by most courts. Tesch v. Milwaukee E. R. & L. Co. 108 Wis. 593; Watermolen v. Fox River E. R. & P. Co. ante, p. 153. It is difficult to conceive of a doctrine more promotive of mischief than the one embodied in the quoted language. If it were to prevail as a measure of the relative rights of a person operating a street car and a traveler upon the street, then each might run a race with the other and the one that arrived at the crossing first demand as a matter of right that his contestant give way for him to pass. Such a system would greatly interfere with the execution of the public purposes for which street-railway franchises are granted. It would, inevitably, greatly increase the number of accidents caused by cars in the street, which are now so numerous as to call strongly for methods of prevention rather than the adoption of judicial rules that will tend to greater confusion and danger, with consequent loss of life and property. Obviously, reasonable safety for travelers upon the streets as well as for patrons of street cars, and reasonable ■safetj’- for persons performing the important duties of operating street cars as well, and reasonable execution of the purpose for which such cars are operated, require that, when a ■car is operated reasonably, that is, in such a way as to give reasonable notice of its approach to a street crossing and reasonable opportunity for travelers upon the street to keep
The following and similar language was used in the court’s instructions: “ The defendant company was bound to exercise its rights with the proper regard to the rights of others.” “The motorman was bound to exercise a proper degree of care,” etc. Such expressions were misleading and confusing. To say that a motorman was bound to exercise a proper degree of care is right in the abstract, but it fails to convey any information as to what is a proper degree of care. Without some explanation it would be no guide whatever but would leave the jury free to set up their own standard. Taken in consideration with the instructions to which the expressions manifestly referred — that the defendant and the motorman owed plaintiff the duty of exercising the highest degree of care, the care of a vigilant and prudent person in the same business under the same circumstances— they were clearly wrong, as we have' before indicated.
“ It is negligence on the part of a street-railway corporation to propel its cars at such a high rate of speed as to endanger the safety of persons attempting to drive onto or across the street.”
The idea in that seems to be the same as in the instructions to the effect that a traveler on the street with a vehicle has the same right to compel the motorman to give way to allow him to cross as the motorman has to delay the traveler. The mere statement of the matter is sufficient to condemn it. It entirely ignored the true relations between the users of the space occupied by the street,— that one is the common right and the other the special right. The duty of the traveler to exercise ordinary care was ignored, and the mere fact of a car being operated so that a traveler cannot pass in front of it without danger was made negligence •per se, regardless of whether the motorman was exercising ordinary care in his situation or not. It admitted readily of the meaning that a motorman must keep his car so under control that in case a person drives in front of it he can stop it before a collision can occur, and that if he does not he is guilty of actionable negligence.
The jury were instructed, in substance, not only that there was an ordinance in force in the city of Eau Claire limiting the right of defendant as to the speed of its cars to ten miles per hour and requiring the bell to be rung on each car continuously while in operation upon the street, but that if a violation of such ordinance was found by the jury it was still a question of fact to be determine by them whether such violation constituted a breach of duty as regards travelers upon the street. The subject covered by such instructions has been heretofore referred to in discussing the questions. It was error to hold that there was an ordinance governing the rights of defendant in the matters referred to. If there was such an ordinance and it was
We have referred to that element of the instructions as regards the effect of a violation of the ordinance, assuming that it was a valid regulation, because the exceptions seem to cover that field sufficiently to raise the question discussed. While that part of the charge was erroneous^ it manifestly was not prejudicial to defendant. The only error which in any event could have been prejudicial to it was in the erroneous statement to the jury that there was in existence a valid ordinance on the subject referred to.
What has been said covers with sufficient particularity the entire field of errors discussed in the briefs of counsel, so far as the points are deemed material to this case, or should be treated in the case, whether necessary or not, as a help in future litigation. We will recapitulate the points decided for the purpose of definiteness and the benefit of greater facility for ready reference.
1. It iá not actionable negligence for the motorman in charge of a street car, when the car is in operation upon a street and approaching a street crossing, to fail to exercise the highest degree of care, or such care as a vigilant or prudent person would exercise under the same or similar circumstances. It is sufficient if he exercises the care of a person of average prudence in the same or similar circumstances.
2. An instruction that a person in the circumstances above indicated must exercise due care or proper care, unexplained,
3. The mere acquirement by purchase of a street-car franchise containing regulations as to the manner of operating cars, as a condition of a new. and independent grant which does not refer to or in any way make the provisions of the old grant a part of the new one, such condition being clearly imposed to prevent a conflict of rights, does not add to or restrict the provisions of such new grant.
4. A city ordinance is not valid unless reasonable, and whether it satisfies that requirement or not is a judicial question.
5. A city ordinance requiring the continuous ringing of a bell upon a street car while such car is in motion upon a street is unreasonable and to that extent void for any purpose, unless made a condition of the grant.
6. If a requirement of the character above indicated is valid for any purpose because made a condition of the grant itself, the violation thereof does not constitute actionable negligence or evidence of such negligence, because, as regards the safety of travelers on the street, it is unreasonable.
I. As a rule the mere operation of a street car so as to render it dangerous for a person to cross the street in front of it is not negligence.
8. A traveler upon a street at a street crossing, desiring to cross the street-car track there situate, has not the same right to require the speed of a car to be slackened to enable him to pass over the track as. the person in charge of the car has to require him to give way to allow the car to pass.
9. The motorman in charge of a street car approaching a street crossing must use ordinary care for the safety of
10. It being the duty of the traveler upon the street, in approaching a point where he desires to cross a street-car track, to look and listen for a coming car and to perform that, duty when and where he will have reasonable opportunity to render his efforts in that regard effective, it is as much his duty as a matter of law to see an approaching car which is in plain sight and in dangerous proximity to the crossing, and not to negligently place himself in the way of it, as it is to look for the car; and evidence that he performed the duty of looking but did not see the coming car does not raise a question of fact for a jury to determine.
11. It being undisputed that an alleged collision between a street car and a wagon that was suddenly drawn upon the track in front of a car at a street crossing did not result in any injury to the car other than a few scratches of the paint on the front end, nor disturbance of lights upon the car, the persons in charge thereof, or the passengers thereon, other than that caused by sudden application of the brake and reversal of the current; that the car stopped substantially at the place of the collision; and that it did not materially push the wagon ahead upon the track nor mar nor break it at the point of contact, such physical situation is so inconsistent with the theory that the car was going several miles per hour, for the few seconds required for a traveler, approaching a crossing at a speed of three miles per hour, to travel thirty feet, as to leave no ground for the jury to say that the mere speed of the car was so great as to constitute actionable negligence.
12. Testimony of a person or any number of persons that he or they, when approaching a street-car track with a view of crossing it, looked along the track for a coming car and
It is contended by appellant’s counsel that the motion to change the answer of the jury on the subject of contributory negligence of plaintiff, covered by the ninth question, to the affirmative, and for judgment, should have been granted; and with that, it must follow from what has been said, we agree. It follows further, under the rule governing the subject, that appellant is entitled to have done that which ought to have been done by a judgment here remanding the cause upon reversal-with directions to the trial court to correct the verdict as indicated and render judgment for defendant. Menominee River S. & D. Co. v. M. & N. R. Co. 91 Wis. 447, 457; Conroy v. C., St. P., M. & O. R. Co. 96 Wis. 243; Keller v. Schmidt, 104 Wis. 596.
By the Oourt.— The judgment appealed from is reversed. The cause is remanded to the circuit court with directions, to correct the verdict by changing the answer to the ninth question from “No” to “Yes” so as, in form, to find the plaintiff guilty of contributory negligence in accordance with the facts, and to render judgment on the verdict as so corrected in favor of defendant for costs.