Geitz v. Milwaukee City Railway Co.

Lyon, J. We doubt whether the jury should have found that the plaintiff was not warned by the emplees of the company of the danger in riding upon the inside foot-board of the car. The testimony is quite strong that special care was taken by the company to cause full warning of such danger to be given to all passengers upon its cars. Yet, in the view we have taken of this case, we do not think the judgment would necessarily be different had the jury found differently on this question. It is quite certain that there was some peril attendant upon riding in that place to which passengers seated in the car were not subjected; yet, in view of the fact that the car was propelled by horses instead of steam-power, and. hence moved less rapidly and was more easily managed, we cannot say it was negligence per se for the plaintiff to ride on the foot-board. Whether his riding there was a negligent act was a proper question for the jury to determine, in the light of all the facts in the case. The jury have determined that it was not negligence on the part of the plaintiff to ride there, and the finding cannot properly be disturbed. The peril found by the jury existed only when the two open cars met, and was caused by their close proximity. The defendant is chargeable with notice of the peril, for it must be conclusively presumed that its officers and superintendents were cognizant of all the conditions which created the peril. Not so, however, with the plaintiff. He had already met several cars without injury; and, although he saw the open car in question approaching, he is not neces [313] sarily chargeable with knowledge that any conditions existed which required him to use greater precautions for his personal safety in meeting such car than he had successfully used when meeting the others. Hence it was fairly a question for the jury as to how far he had notice of such conditions, and whether he did or-did not use proper precautions to secure his personal safety. The immediate cause of the injury, as found by the jury, was the dangerously rapid speed at which the east-bound car was being driven. “We suppose it is common knowledge that a car being propelled upon a railroad track will be swayed by the inequalities of the track, and that the more rapidly it is driven the more it is liable to vary from a perpendicular. While we find no direct evidence concerning the condition of the track at the point of injury, yet we think a jury would be warranted in believing, under all the testimony in the case, that the east-bound car, being empty and rapidly driven on a descending grade, would be very likely to be swayed from a perpendicular by its rapid motion. It is very probable that this cause 'narrowed the space between the two cars which otherwise would have existed, and thus produced the injury. At any rate, these and other conditions were proper for the consideration of the jury; and it was for them, and not the court, to draw the proper inferences therefrom, and say whether or- not the speed with which the east-bound car was being driven caused or contributed to the injury of the plaintiff; and if so, whether, in view of the close proximity of the cars to each other, it was negligence to drive at such speed. We conclude, therefore, that the questions of the negligence of the plaintiff, and of the company and its employees, were properly submitted to the jury, and that the findings of the jury thereupon are supported by the testimony. The record discloses no material error of which the defendant can justly complain. See note to this case in 39 N. W. Rep. 868.— Rep. An elaborate and able argument for reversal was submitted by counsel for defendant, in which numerous adjudications by this court and other courts on the subject ¡of negligence are cited and relied upon. The rules of law applicable to this subject axe reasonably well settled. The only difficulty consists in applying those rules to the facts of each particular case. In making such application cases involving different conditions are not always, or usually, safe guides to correct judgment. Each case must necessarily be determined upon its own facts. Hence, while conceding that most of the cases cited were correctly decided, it is not deemed necessary to refer to them in detail. By the Qourt.— The judgment of the circuit court is affirmed.