Tesch v. Milwaukee Electric Railway & Light Co., 108 Wis. 593

Tesch v. Milwaukee Electric Railway & Light Co.

108 Wis. 593 | Wis. | 1901

FEaeshall, J.

This case involves a few plain familiar principles. Little or no help can be obtained by citing cases from other courts where the facts were materially different or the principles applied not recognized as law by this court. There are no precedents, as regards the facts, in the decided cases of this or other courts, that can be considered controlling or materially helpful. Counsel for respondent has, with great industry and some misdirected professional energy, brought to our attention a mass of cases in support of the judgment; but so many of them are out of harmony with the settled rules of law recognized here that an attempt to apply them to the facts of this case is confusing instead of helpful. There is little use in referring to adjudications to the effect that a diversion of attention will excuse a person, approaching a railway track with the intention of crossing the same, from performing the duty to look both ways and listen for coming cars, so as to carry the case to the jury on the question of whether the plaintiff, seeking to recover upon the ground of the defendant’s negligence, was guilty of contributory negligence, because the rule here is, as it is in most courts, that such duty is governed by a rule of law and not to be determined as a fact, from evidence, by the jury. It *601is as useless to bring to tbe attention of this court cases where it has been held that, though the duty to look and listen exists, the testimony of the plaintiff that he performed that duty, yet did not see nor hear a coming car that was unquestionably within his sight and hearing, is sufficient to carry the case to the jury on the subject of his contributory negligence; because the rule here is that the duty to see those dangers that are in plain sight and hear those that arc plainly within hearing by paying proper attention thereto, is just as absolute as is the duty to look and listen for them, and that a jury cannot be permitted to say that a person, called upon to perform that duty, did not see or hear such dangers, and base a verdict thereon. It is just as useless to urge upon the attention of this court adjudications to the effect that if plaintiff was guilty of contributory negligence he may yet recover if the defendant, after observing his peril, could have avoided inflicting the injury complained of, by the exercise of ordinary care; or cases to the effect that, not-Avithstanding plaintiff’s contributory negligence, he may jmt recover if the defendant was guilty of gross negligence, speaking of his conduct as characterized by negligence strictly so called, not intent, actual or constructive, to do the deed (see Bolin v. C., St. P., M. & O. R. Co., ante, p. 333); or adjudications to the effect that if plaintiff’s negligence preceded defendant’s a considerable period of time, by the act of going upon the track, and defendant by the exercise of ordinary care could have avoided the occurrence of the accident, the negligence of the plaintiff must be considered remote and his situation at the time of the injury a mere condition of it, and the negligence of the defendant the sole proximate cause thereof, notwithstanding plaintiff’s negligence actually continued to and met that of the defendant at the instant of the accident. Such rules are found, in whole or in part, where the doctrine of comparative negligence, in whole or in part, prevails. Rut it does not prevail here at *602all. The doctrine of this court, like that of all courts that entirely discountenance comparative negligence, is that contributory negligence of the plaintiff, however slight, precludes his recovering in an action grounded on the defendant’s negligence, however great such negligence may have been. In this we do not refer to wilful misconduct of a wrongdoer, which has come to be spoken of as gross negligence, meaning, however, intent, actual or constructive, to do the injury, and not negligence at all, strictly so called. The doctrine of contributory negligence applied here has the sanction of the common law from time immemorial, the support of most of the courts and standard text writers, and •half a century of the adjudications of this court. To change it, otherwise than by legislative enactment, would be judicial usurpation. Therefore it is idle to urge upon our attention authorities that cannot be applied except by such transgression.

Cases supporting each of the lines of comparative negligence, and the other rules to which we have referred, are presented here as bearing on plaintiff’s right to recover, and many more might be found, especially in the inferior appellate courts of some of the states. Upon the faith of such authorities, it is believed, much money has been uselessly expended and false, unattainable hopes built up. Other courts have found it necessary, by vigorous language, to stay the tendency of such mischief. In a very recent case in Missouri the court used these emphatic words: “There is no comparative negligence in this state. The rule that the negligence of the plaintiff [want of ordinary care was undoubtedly meant] which contributed directly to the cause of the injury will prevent a recovery is without exception or qualification.” The court was speaking of where recovery is sought on the ground of defendant’s want of ordinary care. Hogan v. Citizens' R. Co. 150 Mo. 36.

What has been said is addressed to the efforts of respond*603ent’s counsel to combat the main contentions upon which reliance is placed to secure a reversal of the judgment, viz., that the verdict finds and the evidence shows, as a matter of law, contributory negligence. Against that the authorities-were cited, among others, which we have seen fit to criticise in a general way only, there being too many of them to-warrant a review thereof in detail. We will reserve the. discussion of the grounds put forth by appellant’s counsel to support their main point, and the reasons for the conclusion we have arrived at, for the closing subject of this opinion.

It does not appear to be contended that there was not evidence sufficient to carry the case to the jury on the subject of'whether the car was run at a negligent rate of speed and whether such fact, under the circumstances, was a proximate cause of the injury; so we need not discuss that question, though it is proper to say, in passing, that the situation disclosed by the evidence fairly raised a jury question as to each of such elements.

Some complaint is made because the court refused to submit questions requested by counsel for appellant, but it does not seem that there is any merit therein, as all the facts in issue were fully covered by the special verdict.

Complaint is also made because the court neglected to instruct the jury in regard to the duty of plaintiff to look and listen before going upon the railway track, in accordance with the suggestions contained in the questions. Also because of instructions which the court did give on that subject. In answer to such complaints, it is sufficient to say that the evidence is undisputed that plaintiff did both look and listen for a car coming from the south on the east track, before he attempted to cross it, and that he neither saw nor heard a car; and the circumstantial evidence and the verdict are consistent therewith. So it must be said that the evidence clearly showrs that, at the instant when plaintiff started *604to cross, the coming car that did the injury was obscured from his view by the car standing at the south crosswalk. The jury found as a fact, on conflicting evidence, that the car gong was not sounded. In view of such undisputed facts and the fact found by the jury, if error was committed either in the instructions in respect to plaintiff’s duty to ] ook and listen for a coming car and to see and observe the speed thereof, or in refusing instructions in regard thereto according to the suggestions contained in the questions which appellant’s counsel requested the court to submit to the jury, no harm resulted to it therefrom. So the case comes down to what we have said is the main contention.

Appellant’s counsel insist that the verdict indicates such contributory fault, because the reasonable meaning of the finding that the motorman ought, in the exercise of ordinary care, to have seen respondent in time to have avoided the injury, is that he ought to have seen him before the view was cut off by the standing car, in which case, obviously, plaintiff ought at the same time to have seen the coming car and not started across the track. We do not think counsel’s idea of the meaning of the verdict is correct. Taking the finding in connection with that in regard to the dangerous speed of the car, and in connection with the undisputed evidence, it is very clear that what the jury meant was, that if the motorman had been operating his car at a reasonable rate of speed, under the circumstances, he would have seen plaintiff upon the track in time to have checked it and thereby avoided the injury. In that view, the finding as to the motorman’s failure of duty in not seeing respondent is perfectly consistent with the finding of freedom from contributory fault on the part of the latter in failing to observe the car in time to keep- out of its way.

To further support the main contention, it is insisted that respondent, as a matter of law, not only should have looked for the coming car from the south on the east track before *605he started to cross, but should have seen the car that did the mischief if it was within the line of his vision looking by the front end of the car located at the south crosswalk, and that if it was not, because it had passed out of view within the territory shut out from observation by the stationary car, he should have anticipated the probability of a car being so located and not attempted to cross the tracks until such stationary car moved on; that is, that the rule of law requiring a person to look and listen for a coming car before entering upon a railway track, includes the duty not only to discover what is observable by the senses of seeing and hearing, but the duty to use such senses when and where they will be reasonably certain to discover the existence of a car dangerously near the crossing, if there be one. No fault can be found with the rule, but, applying it to the evidence as a test of plaintiff’s conduct, in view of other settled legal principles, we still have difficulty in saying that there was not a fair question of fact left for the jury to solve. The industry of counsel for appellant has not been rewarded by discovering precedents which may be referred to as material aids in solving such difficulty; and our labor to that end has not met with any more satisfactory result. Counsel for respondent has not been more successful. The cases cited to our attention by the latter, the strongest of them being from inferior appellate courts, to the effect that respondent was not bound to wait for all the cars that might be coming to pass by — that he had as much right to use the crossing so as to make defendant check the car to allow him to pass over the tracks as appellant had to delay respondent in order to allow the car to pass over the crossing — are not useful. Such expressions, found in legal opinions to support decisions, do not accurately state the law. They proceed on a misapprehension of the relative rights of street-car companies and ordinary travelers, and have a mischievous effect. Such travelers have only the *606•common right, while a railroad company has special rights granted to it by the state through the municipality as its agent. The public thoroughfares are under the control of such public agencies, to be used in such reasonable ways as their appropriate governing bodies may determine not inconsistent with the original design. In the exercise of undoubted power, the common council of the city of Milwaukee granted appellant, or some person under whom or corporation under which it claims, the right to maintain and operate its double-track street railroad, and, so far as appears from the •evidence, without any restrictions as to the speed of oars or the manner of crossing streets. Such granted rights contemplated rapid transit within reasonable limits, and that ordinary travelers on the street should, to a reasonable extent, ■shape their conduct with regard thereto. In the use of its granted rights appellant is considered a public agent. It has, impliedly, such privileges as are reasonably necessary to effect the object of its grant. In order that it may enjoy ■such privileges, ordinary travelers, when upon its track, should give way for the passage of cars and be ready to do so in order not to delay the transit thereof. They ought' not to go upon the track if a car is approaching at a lawful rate of speed and reasonable opportunity does not exist to pass over in safety. If the car is approaching at a negligent rate of speed, and the traveler observes it or ought reasonably to do so, such negligence will not justify a traveler in breaching his duty, to exercise ordinary care for his own protection, by placing himself in the way of such car.

The traveler’s duty, confining it to a street crossing of a street-car track, is stated by the supreme court of New Jersey substantially in this way: ‘ The driver of a team in crossing a street-car track has the right of way if, by proceeding at a rate of speed which under the circumstances of time and locality is reasonable, he will reach the place of cross-' ing in time to safely go upon the track in advance of an *607approaching car, the latter being sufficiently distant to be checked, and, if need be, stopped, before it will reach him; ’ that is, if the driver, proceeding reasonably under all the circumstances, enter upon the track, having exercised reasonable judgment as regards the time necessary to stop the car before reaching him, he is not guilty of any breach of ordinary care, even though it shall turn out that he has miscalculated. N. J. E. R. Co. v. Miller, 59 N. J. Law, 423. Respondent’s counsel relies on that and similar cases. It should be said in passing that the court, in connection with stating the rule as indicated, approved a charge given by the trial court to the effect that a person, in approaching a street-car track for the purpose of crossing the same, where his view is impeded by vehicles or he cannot see up the track, should wait till he reaches a point where his sight is not impeded, before going upon the track; that he ought to be able to see far enough up the track to see that he has the right of way. To that the trial court added this test of when such right of way exists: He has the right of way if he can get upon the track before the car would reach that point if going at a reasonable rate of speed. That was condemned by the appellate court because of two elements: First, that indicating a right on the part of the traveler to get in the way of a coming car by his activity and compel the person in charge thereof to check its speed; second, the right to ignore the actual speed of the car however plainly observable. The true test was given in substance as before indicated, omitting the element permitting the traveler to run a race with a car in order to go upon the track in advance of it, and that permitting him to ignore the unusual rate of speed, but retaining the idea that the traveler need not check his speed to allow a car to pass, but that, traveling at a usual rate, he may go in front of the car, giving time only for the motorman to stop it if need be before reaching the traveler. That is in the nature of an amend*608ment of street-car franchises. Certainly, such privileges as are reasonably necessary to the discharge of the duty of a street-car company to the public in transporting persons from place to place on the street, in the way in which such business is ordinarily conducted, are incident to the franchise to maintain and operate the road, in the absence of municipal regulations or something in the franchise or some state police regulation to the contrary. In the absence of any such regulation, the purpose of such a utility is so inconsistent with every traveler upon the street where it exists having the right to go upon the track in advance of a coming car by merely calculating oh the time necessary for the car to be stopped before reaching the crossing, that it is not perceived how a court can say that such right exists without exercising legislative functions and judicially, in form, restricting the plain intent of the legislative grant.

The test of the ordinary traveler’s right in crossing a street-car track, to harmonize reasonably with the spirit of an unrestricted franchise to maintain and operate, as regards the rights of other users of the way, may properly be stated thus: A person desiring to cross a street-car track in advance of an approaching car has the right of way if, calculating reasonably from the standpoint of a person of ordinary care and intelligence so circumstanced, he has sufficient time, proceeding reasonably, to clear the track without interfering with the movement of the car to and past the point of crossing, assuming that it is moving at a reasonable and lawful rate of speed. If a person, exercising his judgment as indicated, attempts to cross the track, and it turns out that he has miscalculated, he cannot be held guilty of a breach of duty to exercise ordinary care. If in the circumstances stated, other than the speed of the car, the car is approaching at an unlawful rate of speed, and it is observable by the person about to cross the track, by the exercise of ordinary care, he must take that into consideration in determining *609■whether there is time to safely clear the track, the duty to exercise ordinary care for his own protection not being excused by the fault of anybody else.

We are not unmindful of the fact that the rule stated places quite a burden upon the ordinary use of the streets by persons traveling thereon in the ordinary way, especially where there are double tracks with center supporting poles and cars passing both ways at short intervals; but that is one of the incidents of our modern civilization. Everything must move fast. People as a rule will not tolerate anything else. Street-car companies are expected to conform to the public demand in that regard, and are granted franchises, as indicated, in that view. The dangers that result are great and constant. The army of dead and maimed because of such dangers is numerous and being daily added to. But a remedy therefor must not be sought by appealing to courts to change established rules of law in order to indemnify the sufferers; but by appealing to the lawmaking power for such regulations of the construction and operation of street railroads, and the use of streets for such purpose, as will concur with and render such use more in harmony with their safe and convenient use by ordinary travelers, leaving courts to administer justice for wrongs committed notwithstanding, according to the law as they find it.

Now when we apply the test above indicated to respondent’s conduct, the difficulty with saying he was guilty of contributory negligence by no means disappears. We must keep in view the peculiar situation he was in when and just before he started to cross the track, in determining whether there was a breach of duty on his part in not discovering the coming car or waiting till he had opportunity therefor. The east track south, looking by the south end of the stationary car, was observable for a distance of probably 100 feet at least; we cannot say further with certainty, in view of the evidence as to the storm that was in progress and *610other conditions. The track was observable, looking directly east and southeast, by the north end of the stationary car, for a distance of about forty feet. Between the two parts of observable track there was a space of about sixty feet that was obscured by the standing car. From a point where the car came into view from the south till it passed out of view in the region obscured by the stationary car, at the speed it was moving, it took only about six seconds. As respondent came to a stop on the west side of the street, he saw a car approaching from the south as well as one from the n'orth, and waited for them both to pass. The one from the north passed first. As soon as the one from the south was clear of the crossing, he looked again both ways, and'not observing any car approaching from the south, but seeing one coming from the north, a sufficient distance away, however, to enable him to safely cross the tracks, he started. In the time it took for the first car from the south to pass over the crossing, and while respondent was waiting for it to so pass, the six seconds reasonably elapsed necessary for the second car from the south to come into view, pass over the track that was observable to the south, and enter the region of obscurity behind the stationary car, so that when respondent looked before starting to make the crossing there was no moving car in view, south. He made the start supposing that it was safe to do so.

There was no breach of duty to look both ways and listen. "Was it, as a matter of law, want of ordinary care on the part of respondent not to have anticipated the probability of a car being obscured from his sight within the sixty feet of space he could not see by reason of the stationary car ? It seems that the term “ probability ” should be changed to “possibility ” in view of the verity in the case that the car was going at an unusual rate of speed, so that it came into and passed out of sight in a few seconds of time. That would be placing the standard of ordinary care, which one must *611exercise as a matter of law, higher, as it seems, than any established rule of law with which we are familiar will permit, or any precedent, that has been cited to our attention or that we have been able to discover, will justify. If the track had been obscured from the region of the crossing south for substantially all of the way within which an approaching car could otherwise have been seen and would have been, as a matter of law, dangerously near, as regards plaintiff’s crossing the track, the situation would be far different. It was to such a circumstance, among others, that the attention of the court was directed in N. J. E. R. Co. v. Miller, 59 N. J. Law, 423. The same is true of Langhoff v. M. & P. du C. R. Co. 19 Wis. 489. There two trains were approaching on parallel tracks and substantially side by side, one of the trains being obscured from view by the other, and the track on which it was moving, except from the •crossing to about the head of the observable train, was all out of view; yet the court held that the plaintiff was not guilty of want of ordinary care in not anticipating the probability of there being a second train obscured from the injured person’s point of observation by the one that was in ■sight. The situation was similar, on principle, in Newark P. R. Co. v. Block, 45 N. J. Law, 605; Oleson v. L. S. & M. S. R. Co. 143 Ind. 405; Hovenden v. Pa. R. Co. 180 Pa. St. 244; and other cases cited by appellant’s counsel, and many others to be found in the books. They are analogous to Johnson v. Superior R. T. R. Co. 91 Wis. 233, where the railway track, except at the crossing and the immediate vicinity thereof, was obscured from view by the curtains of the driver’s vehicle.

There is nothing in what has been said, nor the conclusion here reached, militating against the rule that a person, approaching a railway track with a view of entering upon it, must look both ways and listen, and that the performance of that duty is not excused by negligence on the part of the *612railway company, and that the duty to look and listen includes that of performing such duty when and where it will be reasonably certain to effect its purpose, as laid down by standard text-writers, numerous decisions of this court, and most of the courts elsewhere. Elliott, R. R. § 1166; Cawley v. La Crosse City R. Co. 101 Wis. 145; Oleson v. L. S. & M. S. R. Co. 143 Ind. 405. This decision goes no further than that, under the circumstances of this case,— the most significant being that a car had just passed by on the east track, that the entire track within which an approaching car would have been dangerously near was in view except a small space thereof over which a car going at the speed of the one in question would pass in four seconds, and that no signal of the presence of the car was given,— it is susceptible at least of a reasonable inference that the attempt to cross the track on the theory that a car was not hidden from view in such, short space, was not inconsistent with ordinary care. That, raised this question of fact: What was the proper inference-to be drawn ? It was the province of the jury to solve that question. Every principle of law bearing on the case seems-consistent with this conclusion, and all light obtainable from precedents is consistent as well.

By the Cowrt.— The judgment of the superior court is affirmed.

Babdeeh, J., took no part.