Thoresen v. La Crosse City Railway Co.

87 Wis. 597 | Wis. | 1894

Pinney, J.

The evidence in this case, we think, was such as to require the submission of the case to the jury. The testimony on the part of the plaintiff tended very clearly to show that the defendant, by its car driver, was negligent in the conduct and management of its car, under the circumstances as described by the witness Harold "Wold, and there are some facts and circumstances that tend to corroborate this view. There is no doubt that the driver looked at, and back towards, the south-bound car; but there is a- decided conflict of evidence as to the relative positions of the wagon and his car, and the distance they were apart at the time. Undoubtedly the driver had a right to look for the car to which he expected to change; but his right in this respect was relative and not absolute. The evidence shows that the intersection of these streets was a much-frequented place in the city, and the evening was dark and rainy. The single-horse street car had only two or three passengers aboard, and, like other vehicles, had a 'common right of passage in the street, but was necessarily confined to its track; and it would seem, from the ordinance in evidence, that it had priority of passage when met or overtaken by any other vehicle. The driver of the car had, however, no right to ignore or disregard the presence of other vehicles on the street, and particularly at the crossing. The authorities cited by the appellant’s counsel show that it is the duty of a driver to exercise the highest degree of care to avoid any collision or accident, especially at street crossings, and that he should exercise all the care that prudence may suggest in looking about and listening to assure himself that his track is clear and safe, and for his failure to do so his employer is responsible. Heucke v. Milwaukee C. R. Co. 69 Wis. 401; Collins v. South Boston R. Co. 142 Mass. 301; Baltimore C. P. R. Co. v. McDonnell, 43 Md. 534, 553; Anderson v. Minneapolis St. R. Co. 42 Minn. 492. The company was bound to exercise its rights and privileges with a proper regard to the rights and safety of others lawfully using the street; and on the occasion in question the driver should have kept a lookout and exercised a proper degree of caution, in approaching the crossing, in this respect. He ought not to have given his attention solely to an attempted identification of his car. The duty which the company and its employees owe to the public is paramount to that which they owe to each other. Anderson v. Minneapolis St. R. Co. 42 Minn. 493.

It is the duty of the company and its employees to the public, to seek to avoid accidents where they are likely to occur, instead of omitting the reasonable precautions that the situation and circumstances naturally and fairly suggest. It is evident that a car proceeding as slowly as the one on the present occasion could have been easily and readily stopped. There is evidence tending to show that the driver, when he ought to have been keeping a lookout ahead, was looking behind, and that he did nothing to stop the oar. Although there is evidence to support a contrary contention, we forbear to remark upon it, for the obvious reason that the truth of the matter is for the consideration of a jury, subject to the power of the court -to set aside any verdict not warranted by the evidence.

In order to justify the court in taking a case from the jury, the question must be -wholly one of law; for if it depends upon controverted facts, upon what facts the evidence establishes, the credibility of witnesses, or what inferences or conclusions should be drawn from the testimony, then it is clearly a question of fact for the jury. Langhoff v. M. & P. du C. R. Co. 19 Wis. 496; Nelson v. C., M. & St. P. R. Co. 60 Wis. 320; Hill v. Fond du Lac, 56 Wis. 242; Valin v. M. & N. R. Co. 82 Vis. 5, 6. The rule is well settled that proof of contributory negligence must be clear and decisive in order to warrant a nonsuit or an absolute direction to the jury on that ground. “ Vhen circumstances leave the inference of contributory negligence in doubt, and the court is unable to say that, upon the most favorable construction which can be given to the evidence for the plaintiff, there is nothing to submit to a jury, a non-suit is improper.” Ewen v. C. & N. W. R. Co. 38 Wis. 613, 628. In Houfe v. Fulton, 29 Wis. 296, it was held that: “ The question of contributory negligence is one eminently proper for a jury to determine; and when the evidence does not clearly and indisputably show such negligence or want of care on the part of the plaintiff, so as to leave nothing to submit to the jury on the opposite theory or position, a nonsuit should not be granted.” Langhoff v. M. & P. du C. R. Co. 19 Wis. 489; Bessex v. C. & N. W. R. Co. 45 Wis. 483.

Vhether, upon all the facts within the observation of the deceased, she reasonably came to the conclusion that she could cross the tracks of the street railway company, we cannot know, except from the testimony of the boy Harold Wold, and his estimate of distances may not be entirely accurate; and in the rain and darkness the deceased may not have been able to judge accurately. Without commenting upon the evidence, we think, under the facts and circumstances disclosed, that it was a question for the jury to say whether the deceased was driving directly across Fourth street, or directly down it towards the approaching car, and that the court could not properly say, under the evidence, as a matter of law, that it was negligence which ought to prevent a recovery for her to attempt to cross the tracks, about thirteen feet in width, at an estimated distance of two rods in advance of a single-horse street car, proceeding at a very moderate pace. The evidence, in many respects, is uncertain and confusing; and the case is one peculiarly for the experience and practical knowledge of a jury, to weigh and give proper effect to the evidence and draw just inferences and conclusions, in view of all the facts and circumstances of the case. We do not think that the evidence shows clearly and decisively that the deceased was guilty of contributory negligence, so as to justify a nonsuit on that ground, and for these reasons the judgment appealed from must be reversed.

By the Oourt.— The judgment of the circuit court is reversed, and the cause remanded for a new trial.

Newman, J., took no part.