108 Wis. 319 | Wis. | 1900
This is an action to recover damages for personal injuries sustained by the plaintiff while riding as a passenger for hire on the defendant’s electric car, by reason of its running into a load of hay, at ten minutes after 8 o’clock on the evening of June 12, 1899.
Issue being joined and trial had, the jury returned a special verdict to the effect (1) that the defendant did, in the manner in which it operated the car in which the plaintiff was a passenger at the time of receiving her injuries, fail to exercise the highest degree of skill and care which a careful and vigilant man would observe in like circumstances in the management of such business; (2) that such failure to exercise such skill and care was the proximate cause of the plaintiff’s injuries; (2J) that a prudent person engaged in the business of the defendant, who exercised the utmost care and forethought for the safety of passengers, would not have foreseen, in the light of the attending circumstances, that an injury to the plaintiff would be the natural and probable re-
Thereupon the plaintiff moved the court, upon the minutes of the judge and such verdict, to order judgment in favor of the plaintiff and against the defendant, or to strike from the verdict the answer to question 2J, or to change the negative answer to that question to an affirmative answer, and then order judgment thereon in favor of the plaintiff and against the defendant, which several motions of the plaintiff the court denied, and the plaintiff then and there excepted. Thereupon the defendant moved the court for judgment on the verdict in favor of the defendant and against the plaintiff, dismissing the complaint with costs, and also to strike out the affirmative answer to question No. 2, as being a conclusion of law and erroneous, and insert in lieu thereof a negative answer, and for judgment thereon in favor of the defendant and against the plaintiff, dismissing the complaint with costs, and also to strike out the answers to questions Nos. 4 and 5, respectively, as not being sus
1. The first question presented by the record for consideration is whether the judgment in favor of the defendant is supported by the findings of the jury. As indicated in the •statement of facts, all the findings of the jury are in favor of the plaintiff, except the answer to question ISTo. 2]-; and that answer is in direct conflict with the answer of the jury, under the charge of the court, to question Uo. 2, as to the proximate cause of the plaintiff’s injuries. Certainly the judgment is not supported by such conflicting findings upon .a vital question in the case. Haas v. C. & N. W. R. Co. 41 Wis. 44; Fick v. Mulholland, 48 Wis. 310; Selleck v. Griswold, 49 Wis. 39; Burns v. North Chicago R. M. Co. 60 Wis. 541; Goff v. C. R. & M. R. Co. 86 Wis. 237; Darcey v. Farmers' L. Co. 87 Wis. 245; S. C. 91 Wis. 654.
2. Besides, there is another insurmountable objection to ■holding that the judgment for the defendant is supported by the findings of the jury; and that is that the answer of the jury to question Uo. 2-]-, upon which the defendant relies, ■does not embody the standard of care required of the defendant. There were several persons in the car besides the plaintiff. The defendant owed the same duty of care and forethought for the safety of all of them. If by the exercise of •such care and forethought the defendant’s employees, or :any of them, in charge of the car, would have foreseen, in the light of the attending circumstances, that an injury to any of such passengers would be the natural and probable
- 3. Undoubtedly a trial court may change and modify particular findings of the jury in a special verdict so as to conform to the admitted facts or the undisputed evidence. Conroy v. C., St. P., M. & O. R. Co. 96 Wis. 243, 257; Keller v. Schmidt, 104 Wis. 602. The question recurs whether, upon the undisputed evidence, the court should have granted the defendant’s motion to change and modify the answers of the jury to questions 2, 4, and 5, as indicated in the statement of facts.
The defendant’s line of street railway runs from a point in Eau Olaire to Chippewa Falls. After leaving the corner of Barstow street and Grand avenue, in Eau Claire, it passes, among other streets, eastward on Madison street to Putnam street, and thence north on Putnam street across Birch street and beyond. About 8 o’clock on the evening in question the plaintiff took passage on the defendant’s car at the corner of Barstow street and Grand avenue for Birch street, where she informed the conductor that she desired to get off. The accident happened on Putnam street, and a short distance south of Birch street. Four hundred and twenty-two feet north of Madison street there is a street coming-into Putnam street from a westerly direction,— known as “ Fay Street,”— which is seventy-three feet in width. From Fay street to Birch street is 421 feet. A short time before the car in question reached Fay street from the south, the-witness McClellan drove out of Fay street with a load of hay onto Putnam street, and from thence north on that street, in such a way that the east wheels of his wagon were between the rails of the defendant’s track. The jury find that McClellan’s wagon proceeded northerly on the de
The motor man on the car in question testified to the effect that after he turned the corner of Madison and Putnam streets he rang the gong until he reached Pay street; that when he got in the middle of the block between Pay and Eirch streets he got a signal — one tap of the bell — from the conductor to stop at the next corner; that he answered such signal with one tap of the gong; that soon after that he noticed a team of horses on his left, and looked to see if they were clear in the road; that as he turned his head back and threw off his power he noticed a load of hay on the track in front of him, and immediately set his brake, and when he saw that he could not stop the car with the brake he reversed his car, and in doing so the circuit breaker blew out, and he hit the load of hay; that, as near as he could judge, he was about twenty feet from the load of hay when he reversed his circuit; that instantly after he reversed the -car the circuit breaker blew out; that he only got two points of the current on the reverse; that when the car struck the load of hay the front window of the vestibule was broken, and the oil headlight in front was broken; that the car might have gone eight or ten feet ahead after striking the load; that he did not notice much of any jar; that he remained standing in his place, and the collision had no effect on him; that, as near as he could judge, the load of hay was about seventy-five or eighty feet ahead of him when he first saw it; that there was a large storm coming up and it was dark at the time; that at the time he first saw the load of hay his car was running about seven miles an hour; that he turned the current off just about the same time that he saw the load of hay, for the purpose of getting ready to make his stop at Birch street; that he had struck his gong three or four times for Birch street, and was hitting it at the time he saw the load of hay; that at the time the car
The plaintiff, who was at the time twenty-eight years of age, testified to the effect that the car was moving along at an ordinary rate of speed, when there was a flash, which seemed like an explosion and as though the car was filled with fire; that following such flash and explosion there was a crash, and the glass began to rattle and break, and that it seemed to her as though the car was going to pieces; that she remained in her seat until after the glass began to break, and then, being terribly frightened, she tried to escape from the car, and ran and jumped or stepped off the rear platform while the car was still moving slowly.
The conductor of the car, who appears to have been a man of considerable experience, was standing on the rear platform when the circuit breaker blew out, and testified to the effect that after the circuit breaker blew out the plaintiff came to the rear door of the car; that he told her to wait until the car stopped; that she was at that time on the rear platform; that she then jumped straight off from the step; that her feet struck first, and then she fell; that he jumped off the car right after her; that the crash or sound of breaking glass occurred just as he left the car; that the plaintiff was then on the ground. He also corroborated the motorman as to the giving of signals, the sounding of the gong, and the darkness at the time.
4. It appears that the other persons in the car remained until it stopped, and were uninjured. Manifestly, if the plaintiff had so remained in the car she would not have been injured. But the flash, explosion, and collision were well calculated to shock a nervous person, as the plaintiff appears to have been. Such persons are liable and expected to ride upon street cars, as well as to travel upon the public highways. Oliver v. La Valle, 36 Wis. 597; Stewart v. Ripon, 38 Wis. 584, 591. We assume that the reversal of the car and the consequent blowing out of the circuit breaker was not of itself actionable negligence. If that is so, then, if the plaintiff actually started out of the car and was jumping or stepping therefrom before the collision and while the car was in motion, as testified to by the conductor, the collision was not the proximate cause of her injuries. But if the collision was caused by reason of the motorman’s negligence, and she remained in her seat until after the collision, as detailed in her evidence, then she would not be precluded from a recovery by the mere fact that she unwisely at
5. But we cannot hold, as a matter of law, that the plaintiff’s motion to set aside the answer of the jury to question Ho. 2^, and then order judgment in favor of the plaintiff upon the other findings of the jury, should have been granted. In answer to some of the questions submitted, the jury required the defendant to exercise a higher degree of care than the law imposed. Thus, in answer to the first question the jury found that the defendant failed “ to exercise the highest degree of skill and care which a careful and vigilant man would observe, in like circumstances, in the management of such business.” The charge of the court authorized the jury to find that the failure to exercise such a degree of care in respect to the plaintiff was the proximate cause of her injuries. So in answer to question Ho. 2£ the jury found that the defendant did not exercise “ the utmost care and forethought for the safety of passengers,” etc. The fifth question submitted is subject to a similar criticism. So the charge requiring the defendant “ to operate its cars with the highest degree of skill and care commensurate with or proportionate to the possibility of injury to its passengers ” is subject to the same criticism. So by the charge the defendant was held “ bound to exert the utmost care and prudence in carrying its passengers.” Undoubtedly there are adjudications which give support to such expressions in regard to such carriers, but in our judgment they are misleading if not erroneous. A recent text writer has stated, as the clear result of the best adjudications on the subject, the rule thus: “For the safety of their passengers, common carriers are
The wording of some of the questions submitted, and the charge to the jury, may be the subject of criticism, but that will probably be obviated upon a new trial.
By the Court.— The judgment of the circuit court is reversed, and the cause is remanded for a new trial.