168 Wis. 562 | Wis. | 1919
Lead Opinion
Plaintiff testified that he had worked at this job three days; that he knew the cars passed the place frequently while he was there. He stated that on the occasion in question he passed over the plank from the curb towards the mixer, pulling the wheelbarrow behind him by its two handles; that he looked to the north on Sixth street before he reached the mixer at a point about eight feet from the car tracks and saw no' car; that his view was unobstructed (a distance of about -340 feet) ; that he went down the plank and to a point near the track; that he dropped the barrow handles, turned around, stooped over to' grasp the barrow handles to push it forward, when he was hit by the street car and injured. He testifies that the mixer was about five feet eight inches in height at its highest point and that it did not prevent his seeing the approaching car from where he was working.. It is also undisputed that the barrow had to’ be moved about six feet from the car track from where he stood to place it under the spout of the mixer. He testifies that he did not look to observe an approaching car when he stepped into' the zone of danger nor when he stopped, turned around, and stooped to1 grasp' the barrow handles to push it forward under the mixer spout;
Plaintiff’s 'evidence shows that he could see the approaching car at all times on his trip from the curb to the place he stopped near the track to turn around. It is obvious that the car which hit him was near him and that he necessarily would have seen it had he looked before, he stepped into1 the zone of danger o'r after he had entered it. It is also undisputed that nothing occurred to divert-his attention or- to* prevent him from seeing the approaching- car had - he looked
The contention that the evidence here presents a case of the class typified by Turtenwald v. Wis. Lakes I. & C. Co. 121 Wis. 65, 98 N. W. 948, and Dinan v. Chicago & M. E. R. Co. 164 Wis. 295, 159 N. W. 944, is not sustained. In the Turtemvald and Dinan Cases the plaintiffs at the time of injury were engaged at their work, located in the place of danger, and their attention, when, directed to their tasks, necessarily prevented them from readily observing and seeing the impending danger and avoiding it. That is not the fact here; the plaintiff, as shown by the undisputed evidence, was not prevented from looking and seeing the approaching car, nor was his engagement such as to hinder him from using his senses to observe that he was in the zone of danger and in imminent peril of being hit by the car.
By the Court. — The judgment appealed from is affirmed.
Dissenting Opinion
(dissenting). In Dinan v. Chicago & M. E. R. Co. 164 Wis. 295, 159 N. W. 944, it was said:
■ -“A man who is engaged in work upon the highway cannot, if he performs his duty, spend a large part of his time in looking for the approach of street cars or other vehicles. In "a busy street he would accomplish little if he did so. Of course he cannot let his thoughts go wool gathering and expect all users of the highway to give, place to him; he*566 must exercise some vigilance; he must keep that lookout for vehicles which an ordinarily careful man similarly situated would keep; a man who is compelled to be in the street and tO' be giving attention to- his work. Such care must manifestly be a lesser degree than the care required of a person who is on the highway for the purpose of travel alone and may come and go at will.”
In my opinion that principle rules this case. Plaintiff was wheeling concrete from a mixer stationed in the street, in close proximity to the street-car tracks, to the abutting lot. A plank sixteen feet long extended from the curb to within twenty inches of the street-car track. He wheeled the concrete over this plank. In order to get on or off this plank with his wheelbarrow he was obliged to enter upon the street-car track. At the time of the accident he was returning to the concrete mixer to have his barrow filled, after having delivered a barrow full upon the adjacent lot. As he was going down the plank he looked to the north and saw no car. He proceeded down the plank pushing the wheelbarrow ahead of him; at the end of the plank he turned the wheelbarrow around and pushed it towards the concrete mixer, where he set it down tO' be filled, standing between the handles. He was out of the way of the street car, but the handles between which he stood were struck by the street car and the handles threw him to the ground.
When it is considered that he looked for a car when he came down the plank; that running at the rate of fifteen miles an hour a car would reach the mixer within approximately fifteen seconds after it came into view; that his attention was necessarily engaged in the matter of properly placing his barrow to receive the concrete from the mixer; that he himself was out of the zone of danger; that he was probably unconscious of the fact that the handles extended within the pathway of the car; that this mixer had been in the same place for three days; that its presence there was presumably known to the motorman, and that he had a right to rely on warnings of the approach of the car (Forrestal v.
