219 Wis. 541 | Wis. | 1935
Plaintiff was injured by being struck on the back by the rear end of a streetcar as it swung outward while rounding a curve in the track at a street intersection. The
On the day of the accident, the plaintiff was the last passenger to alight from the car at its center exit, which was fifty feet west of the crosswalk. She stepped off to the south into a marked safety zone on the public street. That zone was bounded by two yellow lines which, as painted on the pavement by the Milwaukee police department, extended east and west, parallel to the car track, until they converged at the west end of the zone. At their eastern extremity, the north line, which was two and three-tenths feet south of the south rail, ended thirty-five feet west of the west crosswalk; and the south line, which was six and five-tenths feet south of that rail, ended twenty-three and five-tenths feet west of that crosswalk. The difference in those distances was due to the fact that each of the lines terminated shortly before reaching the south rail of the track which curved off to the south. Two movable iron posts were placed by the police department daily to indicate the east and west limits of that safety zone. The east post was placed about twenty-five feet west of the cross
The court found that plaintiff’s injury was proximately caused by the negligence of the motorman and conductor in, (1) failing to allow her to reach a place of safety; (2) in failing to keep a proper lookout to the south of the train; and (3) in starting it forward upon a curve which they knew, or ought to have known, was dangerous to persons in
In the case at bar, the place at which the plaintiff alighted was not only safe and proper for that purpose, but it was part of an adequate safety zone, in which she could have safely remained where she alighted, or moved about, until the car had proceeded, or she could safely go to the south curb. As plaintiff voluntarily left that place of safety, she thereby terminated her status as a passenger. Thereupon, her situation and rights and duties were the same as those of any other adult pedestrian upon the public street. In respect to such a pedestrian standing or walking near the track, who knew of the proximity of a car and that it was about to proceed, and who, by the use of his senses, could readily observe, and ought to have observed, the movement of a car upon a curved track, the defendant’s employees could rightly assume that he would withdraw far enough to avoid being struck by the rear end of the car as it swung around the curve in the usual manner. Under such circumstances, no duty is imposed on employees in charge of a streetcar to keep a lookout or to
“. . . The rule approved by the weight of authority is, that in view of the well-known fact that in rounding a curve, the rear end of a streetcar will swing beyond the track, and overlap the street to a greater extent than the front, the motorman may rightfully assume that an adult person standing near the track, who is apparently able to see, hear and move, and having notice of the approach of a streetcar, and of the existence of the curve, will draw back far enough to avoid being struck by the rear of the car as it swings around the curve in the usual and expected manner, and, therefore, no legal duty is imposed upon the motorman to warn such a person against the possible danger of a collision with the rear, because of the swing, if he remains in the same position.
To the same effect, see Dwyer v. Los Angeles Ry. Corp. 115 Cal. App. 709, 2 Pac. (2d) 468, 470; French v. Princeton Power Co. 95 W. Va. 707, 122 S. E. 171, 172; Gannaway v. Puget Sound Traction, Light & Power Co. 77 Wash. 655, 657, 138 Pac. 267; Wheeler v. Des Moines City R. Co. 205 Iowa, 439, 215 N. W. 950; Matulewicz v. Metropolitan St. Ry. Co. 107 App. Div. 230, 95 N. Y. Supp. 7; Widmer v. West End St. Ry. Co. 158 Mass. 49, 32 N. E. 899; Noonan v. Boston Elevated Ry. Co. 263 Mass. 305, 160 N. E. 811; South Covington & C. St. Ry. Co. v. Besse, 33 Ky. Law Rep. 52, 108 S. W. 848, 16 L. R. A. (N. S.) 890; Louisville Ry. Co. v. Ray (Ky.), 124 S. W. 313; Duffy v. Philadelphia Rapid Transit Co. 291 Pa. 564, 140 Atl. 496, 497. That rule was applied in relation to a pedestrian, in Kuhn v. Milwaukee E. R. & L. Co. 158 Wis. 525, 149 N. W. 220; and in relation to an automobile driver in Ryan v. Milwaukee
“He [the motorman] cannot turn to the right or left like the drivers of other vehicles or pedestrians to avoid collisions. He has the double duty of using care to avoid injury to others and of making reasonable speed to accommodate the public. It is true, collisions may happen at the rear of a passing streetcar, but from the nature of the thing such collisions seldom occur, and if they do they are quite apt to be the result of the negligence of some third person. It would seem a harsh rule to require a motorman to anticipate any such collision in the absence of any known danger. In this case the truck seemed out of the zone of danger when the motorman and the first car passed it. There seemed no reason to expect that the truck driver would assume such a position that a collision would occur. . . . Since it was necessary for the motorman to keep close watch forward, we do not consider that he was also required to look constantly to the rear to avoid such a collision as occurred. The law does not impose any such responsibility. . . . ”
So in the case at bar, even if defendant’s employees had seen, as the car was passing the plaintiff, that she was standing on the crosswalk, they would have been entitled to assume that she, in the exercise of ordinary care, would be aware, as she stood within only five and one-tenth feet of the two-car
For the reasons stated above, there was no negligence on the part of defendant’s employees, which can be held to be a proximate cause of plaintiff’s injury, (1) in respect to allowing her to reach a place of safety; or (2) in respect to starting the train forward upon the curve; or (3) in respect to keeping a proper lookout to the south of the train. Consequently, there was no actionable negligence on the part of the defendant, and it was entitled to have the action dismissed. But, even if there had been some actionable negligence on defendant’s part, the evidence would well have warranted finding contributory negligence on the part of the plaintiff, because of which her recovery would be subject to diminution, under the comparative-negligence statute (sec. 331.045, Stats.). In the midst of the heavy traffic conditions at that intersection, it was plaintiff’s duty to look and listen, and to observe and hear, all that could have been observed and heard by an adult pedestrian exercising ordinary care in that situation; and her failure to observe and hear the moving car, which she knew was close to her and about to proceed around the curve, and to keep out of its pathway by moving slightly ahead or aside, could well be deemed to constitute negligence which proximately contributed to her injury. Peters v. Milwaukee E. R. & L. Co. 217 Wis. 481, 259 N. W. 724;
By the-Court. — Judgment reversed, and cause remanded with directions to dismiss the complaint.