Tishacek v. Milwaukee Electric Railway & Light Co.

Dodge, J. The principal question presented by the assignment of error is whether the evidence, upon consideration most favorable to the plaintiff, tends to establish negligence on the part of the motorman in charge of defendant’s car. The motorman’s own narrative is the only complete statement of his conduct. He testifies that running north on Douglas avenue, upon a slight upward grade less than one [419] foot to the 100, at about eight miles per hour, when about sixty feet from the south crossing of St. Patrick street, he .saw this little girl start from the east side of Douglas avenue to cross that street. He apprehended that she might get on the crossing in front of his car, and immediately applied his brake and sounded his gong. He continued this until the little girl stopped, as hereinafter stated. Therg is no dispute that he had plenty of time to have stopped his car before reaching the crossing. When the deceased got within •about twelve feet of the track she looked round at him and his car, and continued so to look as she moved forward, until she reached a point about three or four feet from the track, when she stopped, still looking at the car. He thereupon threw off his brake, and “let the car drift along.” When the car reached a point about six feet from the crossing, the little girl suddenly started to run across in front of it, and either tripped and fell or was knocked down by the •car and run over. The moment he saw her make that start he jumped onto his brake with all his strength, and attempted to drop the fender, but missed the peg. The fender on the car was arranged either to be dropped by pressure on a pin in the platform or by coming in contact with any obstruction. He was not able to stop the car until it had run wholly across St. Patrick street. The only other eyewitness was a Mrs. Hau, sitting in a buggy on St. Patrick street, who •estimates the distance of the car at the time the little girl started across Douglas avenue at some ninety feet from the crossing, and its speed at that time at about twelve miles an hour. She in no wise contradicts any of the other statements of the motorman, and confirms him in the statement that the little girl stopped at a point about three feet from the track, and then attempted to run across in front of the car. Her testimony is entirely indefinite as to the length of this stop. In response to plaintiff’s counsel she said that she could not testify to the length of time, and in reply to ■cross-examination said that it was less than five seconds. [420] Another witness, not in sight of the crossing, looking out of a window further south, saw the car pass, and estimated its speed at sixteen miles per hour. Her line of vision is, by measurement, shown to have been limited at a point about seventy-three feet south of the crossing. She saw the motorman commence to apply his brake vigorously. There is here disclosed no conduct from which the inference of negligence can be drawn. Conceding that, when the little, girl was seen to start across the street, the motorman should have apprehended the probability that she would not exercise ordinary observation, care, or judgment, and might be in peril of collision, and that the duty rested on him to take all precautions to protect against such result, the evidence fails to show that he omitted any part of such duty. On the contrary, it establishes that he did take the ordinary and usual precaution of sounding his bell and applying his brake at a time and place when full control of his. car was feasible and easy. It quite satisfactorily appears that but for the child’s subsequent conduct no accident would have occurred. Certainly, there is no evidence that, up to the time the decedent stopped in her progress, the motorman omitted any precaution which might have affected the result. The burden of proof, of course, was on the plaintiff to prove negligence, and, in the absence of such proof, no inference or conjecture can be indulged. Commencing, then, at that point of time when the decedent stopped in a place of safety, looking directly at the car, and apparently for the very purpose of awaiting its passing, can negligence be predicated upon the fact that the motorman then allowed his car to proceed on its way, evidently with considerable speed ? This depends on whether it is within reasonable probability that a five-year-old child, having full knowledge of the approach of a car, and having stopped apparently because of it, will suddenly run from a place of safety to a place of danger on the track. ¥e cannot think [421] an affirmative answer possible. It' would be much more in accord with probabilities that children playing in the street, in apparent oblivion of an approaching car, should suddenly dash in front of it; but that anticipation of such acts is not essential to due care in operators of street cars this and other courts have already decided. Ye suggest no doubt that, in operating street cars in places where children of tender age are known to be, due care or ordinary care involves a high degree of precaution, in contemplation of thoughtlessness and heedlessness; but common experience justifies the expectation that children of an age to be permitted to care for themselves upon-city streets will exercise some measure of precaution when danger is actually observed by them. The case before us is distinguished from many which have found their way into the reports by the undisputed fact that the child saw the car; that she gave evidence by her conduct of appreciation of the danger in an attempt to cross in front of it, and of the exercise of judgment in deciding not to incur that danger, but to avoid it by the natural precaution of stopping short of the peril. In this respect the motorman’s conduct is less open to any imputation of negligence than in most of the cases where it was decided that no inference against him could be drawn. Eastwood v. La Crosse City R. Co. 94 Wis. 163; Holdridge v. Mendenhall, 108 Wis. 1; Chilton v. Central T. Co. 152 Pa. St. 425; Fleishman v. Neversink Mt. R. Co. 174 Pa. St. 510; Funk v. Electric T. Co. 175 Pa. St. 559. No negligence being shown in thus proceeding to send his car onward past the child, none can exist in the subsequent conduct of the motorman. The injury was, then, due to her sudden and unexpected action, against which no acts of his could avail. The trial court rightly directed a verdict for defendant. We discover no error in the several rulings on evidence assigned as such. By the Court.— Judgment affirmed.