Hanlon v. Milwaukee Electric Railway & Light Co.

Dodge, J. The finding that the defendant’s servant negligently operated its car is not seriously controverted. In its support there was evidence of extraordinary speed — twenty to twenty-five miles per hour — and that nothing was done to check that speed till within some twenty feet of collision, although the plaintiff’s team was in plain sight when the car was 100 feet from the crossing, and although bis gong bad been regularly sounded for several blocks; Indeed, it is in-ferable that the motorman neglected to keep any lookout ahead during a run of some eighty feet of approach to the crossing, for be failed to see plaintiff’s team and vehicle until close to them. The chief contention is that plaintiff’s conduct, as conceded or conclusively established, constituted contributory negligence. — 215 — The primary question argued is whether facts and circumstances surrounding the plaintiff at the time of and just before bis injuries varied so radically from those surrounding the ordinary traveler that what would have been negligence in the latter per $e as matter of law might by reasonable minds be deemed consistent with the care to be expected of the ordinarily prudent man under such circumstances as are shown in this record. That the same acts may be either careful or negligent according to the variant circumstances is elementary. Boelter v. Ross L. Co. 103 Wis. 324, 330, 79 N. W. 243; Warden v. Miller, 112 Wis. 67, 87 N. W. 828; Yerkes v. N. P. R. Co. 112 Wis. 184, 193, 88 N. W. 33. This court, in common with many, if not most, others of last resort, has declared that certain acts are so obviously and notoriously variant from the conduct of persons of ordinary prudence at railway crossings under all ordinary circumstances that reasonable minds cannot honestly differ as to whether they are negligence; hence that they must be so held as matter of law. Among these are the omission to look and listen for an approaching car when the opportunity to do so exists; also the needless attempt to make the crossing ahead of the car or engine with knowledge of its approach in such-proximity and at such speed as to make the attempt dangerous. Koester v. C. & N. W. R. Co. 106 Wis. 460, 465, 82 N. W. 295; Tesch v. Milwaukee E. R. & L. Co. 108 Wis. 593, 84 N. W. 823; Watermolen v. Fox River E. R. & P. Co. 110 Wis. 153, 156, 85 N. W. 663; Stafford v. Chippewa Valley E. R. Co. 110 Wis. 331, 346, 85 N. W. 1036. In the last case it is declared negligence to attempt to cross when collision is probable, unless the speed of the car be greatly slackened. In this connection it is also settled in Tesch v. Milwaukee E. R. & L. Co. 108 Wis. 608, 84 N. W. 823, that the ordinary traveler is not necessarily negligent if, calculating reasonably,'be has time to cross safely without interfering with the movement of the car, assuming it is moving at a reasonable rate of speed — 216 — or at the higher actual rate, if known to him. This conclusion was reached as a corollary of the proposition that, as between tlio general traveling public and the street car, the former have neither right to interrupt the latter’s course to enable them to cross, nor reason to expect that the operator will so manage the car as to give them opportunity, for cars are not usually so managed, and cannot be consistently with the duty of rapid transportation which they serve. Another consideration, written into several of the above cases, which has been forceful in leading to conclusion of negligence from an attempt to make the crossing in a doubtful case, is the very slight measure of inconvenience to the ordinary traveler in pausing to give the car way, as compared with the peril of attempting the crossing. In the light of the principles and rules of law thus established, let us consider whether the circumstances surrounding plaintiff were such that they might legally differentiate the situation from the ordinary one as to the conduct reasonably to be expected from the man of ordinary prudence. We must first eliminate one asserted element of conduct which is made the basis of much of appellant’s argument in supporting both his claim for a directed verdict and certain requested instructions; that is, that plaintiff approached Vliet street at such speed, and with his horses so beyond control, that he could not have stopped to avoid collision, although the car had been on the crossing without negligence of the motorman. We do not find it necessary to decide whether such conduct would constitute negligence, for we find no proof of it. The evidence is without dispute that, although driving rapidly, with horses on a run, as his duty required, plaintiff still had them under perfect control, and had already checked them so that he might have stopped at the time when he sighted the car, ninety to 100 feet away, when he decided that he had sufficient time to cross ahead of it. Again, there was no failure of the duty to look, and no failure to see that — 217 — which was physically apparent. At the moment that he reached the building line on the north side of Vliet street he looked, and saw this car. Hence the question is whether an irresistible and indubitable inference of negligence arises from the fact that he gave head to his horses, and attempted to make the crossing. Among those things which distinguish the conduct of the driver of fire apparatus from others is, primarily, the duty and necessity of great speed. The loss of moments may mean destruction of lives or property. The public purpose which such men and appliances serve would be defeated by the hesitation and caution which does and should characterize the ordinary traveler. To serve this public purpose, the driver must and does seize every opportunity to make expedition. He takes chances, in deference to the imperative necessity for speed, which would be wholly unjustifiable otherwise. These things firemen do. These things they must do. The conclusion seems irresistible, either that they are consistent with ordinary care under those circumstances, or that the ordinarily prudent man cannot hold a position in the fire department. Another distinguishing circumstance is the persistent alarm which precedes the fire vehicle. The clamor of its gong is a penetrating, far-reaching sound, so entirely distinct from the other sounds of a city street as to force attention at once. That circumstance, of course, greatly diminishes the hazard resulting from the speed, as it serves to clear the way of obstacles, and justifies a considerable measrrre of confidence that crossings and corners will be clear when reached. Another and most important distinction, certainly as applied to plaintiff’s conduct, is the undisputed and uniform custom of the operators of street cars to give the fire vehicles right of way, and to slow down and stop to avoid collision. This is just what the ordinary traveler has no justification in expecting. His duty, as pointed out in the Tesch and Stafford Cases, is to govern his conduct upon the expectation that the car will continue at — 218 — the speed at which it is traveling when he observes it. The ordinarily prudent man acts in the light of his experience of what is customary and usual. If the uniform custom were to hold cars bach from a crossing to enable him to pass over, he would probably deem it safe to proceed when he believed that his approach was seen by the motorman, and the car was far enough away to permit the usual efforts to have effect. As that is not usual, a contrary rule of conduct is and must be observed by the ordinarily prudent traveler. On the other hand, it is held to be consistent with due care for the motorman under such circumstances to approach crossings, even at such speed that he may be unable to avert collision with passers, merely because he has a right, based on experience, to expect that travelers will not come in his way when his car is in sight and his gong sounded to warn them. We are of opinion that-it is not beyond reason for a jury to conclude that the plaintiff, after having given warning of his approach by such clamor of his gong that it was heard by people shut up in houses while he was still a block or more away, and when he drove out from Sixteenth street into plain sight of the motorman ninety feet away, might have believed reasonably that his presence was known, and might reasonably have expected that the usual and customary efforts to keep the car back from collision would be made. If that had been done, there is no pretense but the wagon could have passed in safety; hence a decision to make the attempt would not have been unreasonable. In other words, we hold that, although it might have been negligence in law for a traveler under ordinary conditions to have taken the chance of crossing ahead of a car in the proximity and at the speed of this one, still the circumstances surrounding plaintiff so differed that reasonable minds might consider the same attempt by him within the bounds of due care; hence that the question was one properly for the jury. Only four decided cases with reference to street-crossing — 219 — collisions with fire-department vehicles Rave been brought to our notice. Of these Warren v. Mendenhall, 77 Minn. 145, 79 N. W. 661, and Decker v. Brooklyn Heights R. Co. 72 N. Y. Supp. 229, hold squarely that the circumstances surrounding the drivers are marked by material distinctions from those around other travelers, and that what would be negligence per se in the latter may well be open to a contrary conclusion in the case of the former. They fully support our view as above stated. On the other hand are urged upon us by the appellant Greenwood v. P. W. & B. R. Co. 124 Pa. St. 572, 17 Atl. 188, and Garrity v. Detroit C. St. R. Co. 112 Mich. 369, 70 N. W. 1018. In the former of these the collision was with a steam railway train, where, of course, neither could the fireman’s gong give any warning, nor was there any custom, nor, indeed, possibility, that the train should be slowed down or stopped after the wagon was in. sight. The court held that the mere necessity for speed' was not sufficient to absolve the driver from a duty to look for an approaching train, when, as there, he had full and practical opportunity to do so. In the Michigan case it was said to be against public policy, and therefore negligence per se, to drive through city streets at such speed as to make evasion of obstacles at crossings impossible; but the case was held to have been properly one for the jury, because it was within reasonable judgment and prudence to attempt to cross ahead of a car 100 to 150 feet away when the driver first sighted it — a holding that would support the view that plaintiff’s negligence was properly a jury question in this case. In Magee v. West End St. R. Co. 151 Mass. 240, 23 N. E. 1102, the court holds that the duty of haste resting on a fireman constitutes a distinguishing circumstance which might warrant a finding of due care in his case, though not in case of one not in such exigency. This was applied to plaintiff’s manner of riding on a truck while adjusting his equipments. In Flynn v. Louisville R. Co. (Ky.) 62 S. W. 490, the court — 220 — expresses views generally in recognition of sufficiency of the necessity for speed and existence of right of way over cars to exculpate a driver of a salvage wagon attempting the crossing, hut the case turned upon the supervening negligence of the motorman, and the question of contributory negligence in plaintiff was not authoritatively decided. The result of these decided cases from other courts is to confirm the view already expressed that the question whether, under all the circumstances, plaintiff was guilty of contributory negligence in attempting to cross Vliet street ahead of the approaching car, was properly for the jury. Error is assigned upon the refusal to give certain instructions, both with reference to defendant’s negligence and plaintiff’s contributory negligence, based upon an assumption that the jury might have found from the evidence that plaintiff approached Vliet street with his horses at such uncontrollable speed that he could not stop to avoid a collision. We have already stated that such an assumption has no support in the record. There is no evidence of any such condition of things. Further, the instructions requested with reference to the question of contributory negligence were incorrect, in that they required the jury absolutely to answer such questions in the affirmative if they forind that there was such uncontrolled speed. As pointed out in Garrity v. Detroit C. St. R. Co., on which appellant seems to rely, such speed might or might not have been contributory negligence. It might or might not have contributed to the collision; for if, when plaintiff reached Yliet street, and saw the car, it was consistent with ordinary care under all the circumstances for him to decide that it was safe to cross ahead of it, then the attempt so to do might not be negligence, although the event did not justify it (Tesch v. Milwaukee E. R. & L. Co. 108 Wis. 593, 84 N. W. 823); especially if, as the evidence tended to prove, the collision was due to conduct on the part of the motorman such as an ordinarily pru — 221 — dent person, driving a fire vehicle, -would not have anticipated. In such case the antecedent rapidity. of approach would have no cansal connection with the collision. Ho error was committed in refusing these requests. Another instruction was requested to the effect that one approaching a street railroad track, and “having a reasonable opportunity to judge of the speed of an approaching car, is bound to know such speed, and cannot assume that it is running at a speed consistent with ordinary care, and proceed upon that assumption.” Assuming that this instruction correctly states an abstract rule of law applicable to ordinary circumstances, it would be highly misleading in a case of this sort, where there were additional circumstances naturally affecting the driver’s conduct; most prominent among them the custom of operators of cars to change their speed, either by slowing up or stopping, in order to give opportunity for the fire vehicle to pass. The man who has a right, in the exercise of ordinary prudence, to assume that such efforts will be made and be effective, is not necessarily negligent because he attempted to pass in front of a car, although it would be likely to collide with him if it continued at its known speed. As is said in the Tesch Case, the ordinary traveler has no right, in the exercise of a reasonable prudence, to indulge such expectation; but the driver of a fire department vehicle has, if he has reason to believe that his presence is known to the motorman. This instruction is, however, erroneous and misleading in another respect. It requires of every man “having a reasonable opportunity to judge” that he judge correctly, and “know” the correct speed. This goes beyond any authority in this or other courts. He is obliged to know that which the ordinarily prudent and intelligent man would know under the circumstances. Having, as the court said, reasonable opportunity to judge, he must reach the conclusion of the ordinary man, and not the infallible one. These suggestions are especially applicable to one who gets but a — 222 — glance of a car or train approaching him nearly head on, for he is not at all well situated to observe accurately the speed. Pie must observe what is perceptible, but beyond this the law does not charge him with knowledge. Another request for instruction was to the effect that one approaching a car track “must, in the exercise of ordinary care, look and listen for an approaching car, and continue so to look and listen up to the last moment that such acts would be of any virtue in preventing a collision with a car.” Conceding that this is a correct abstract rule, as in most of its language it is, yet it has no application to the present case, for the evidence establishes without controversy that the plaintiff did look and see and know all that could have been ascertained by the utmost vigilance. The instruction is, however, faulty, and faulty in a respect relevant to the situation here. It lacks the qualification that one must look and listen if he have opportunity so to do. There is possibility, especially with one managing a team and vehicle, that his continued observation of the track in either direction may be at least morally impossible; that his attention may be not diverted, as has been incorrectly said in one or two cases, but absolutely forced away from watchfulness. For example, in this case it was just as essential to plaintiff’s due care that he should look westward for an approaching car as that he should look eastward, and the only intimation in the evidence of any diversion of his attention from the car which struck him was for the purpose of the exercise of this duty. If this instruction required him, from the moment he was in position to see up or down Vliet street, to keep his eyes fastened on this particular car, and to govern his conduct without informing himself as to the condition of things in the other direction, it of course contains its own refutation, for that would necessarily be negligence. The possibility of the forcing away of one’s attention as an excuse for continued watchfulness is discussed in Guhl v. Whitcomb, 109 Wis. 69, 74, — 223 — 85 N. W. 142, where the previous cases were collected, and where it was pointed out that no ordinary or trifling circumstance could justify diversion or withdrawal of attention; yet, where the circumstances so forced it away, it might he well held that a plaintiff had not the opportunity to look or listen. Error is predicated upon the charge given in the following words: “By ordinary care is meant such care as a man of ordinary care and prudence would have exercised under circumstances like to those disclosed by the testimony in this case.” The criticism seems to be that the charge would have suited appellant’s taste better had the expression “the great mass or majority of mankind” been used instead of “a man of ordinary prudence.” The instruction assailed is strictly accurate. It seems that we ought by this time to be absolved from the necessity of repeating that the two expressions, “the great mass or majority of mankind,” and its type, “the man of ordinary care and prudence,” are entire equivalents, and properly used interchangeably. Yerkes v. N. P. R. Co. 112 Wis. 184, 193, 88 N. W. 33. Another instruction complained of is to the effect that, it having been established beyond controversy that the custom was uniform for the street cars to stop or slacken speed, so as to permit fire apparatus to cross the streets when their approach was known, the plaintiff had a right to assume that the defendant’s servants would so conduct themselves, if they knew, or, in the exercise of ordinary care ought to have known, of his vehicle’s approach. The complaint seems to be that the court told the jury that this custom was established by undisputed evidence. -It certainly was, and in so stating we can discover no error. The same is true of the fact that plaintiff was responding to a fire alarm. In these respects we cannot concur with the appellant’s criticism. That the right to make such assumption exists certainly has — 224 — support from Watermolen v. Fox River E. R. & P. Co. 110 Wis., at page 159, 85 N. W. 663, Stafford v. Chippewa Valley E. R. Co. 110 Wis., at page 361, 85 N. W. 1036, and other cases which declare that the motorman of a street car has a right to assume that persons approaching a street crossing will exercise the usual and customary precautions, and may operate his car accordingly without guilt of negligence. Error is assigned upon permitting a witness to testify that, sitting on a sidewalk, he had frequently heard the gong of the fire patrol wagon, which was described as similar to the gong on the plaintiff’s wagon, at a distance of two blocks. The complaint seems to be that the conditions surrounding the witness were not identical with those surrounding the motorman. This, of course, is true, but we do not think it rendered the evidence inadmissible. It was a circumstance bearing upon its weight. The record is full of testimony, given without objection, from witnesses who heard the gong of this vehicle at varying distances and under varying circumstances of opportunity. It would be far too restrictive a rule that, in order to give the jury benefit of experience as to the effect of such gongs in giving distant warning, the witness must have been in exactly the same situation as the person claimed to have been warned on the particular occasion. All of the circumstances surrounding each witness being before the jury, the inference as to the efficacy of the sound became a question of fact for them to resolve as reasonably intelligent men. Further error is assigned upon permitting cross-examination of the motorman as to whether the car in question was not a specially rapid one; he finally stated that, while not the most rapid, there were only two others which excelled it. The situation at the time this testimony was taken was that several witnesses had described the speed of the car at varying rates up to twenty-five miles an hour. The motorman himself had testified that he had his power lever thrown open — 225 — to the second highest notch; that the ninth notch was the ultimate speed of the car, and that he had it at the eighth notch. In this situation, the ability of the car to make great speed was certainly a legitimate fact to he drawn out in testing the accuracy of this same witness, who had claimed- that his speed was only seven or eight miles an hour. Ho error was committed in permitting him to be so cross-examined. The damages are assailed as excessive, and in that connection complaint is made of an instruction which permitted the jury to consider plaintiff’s loss of earning capacity for the future. The plaintiff was thirty-seven years old, had been in the fire department some nine years, and attained the rank of captain, with a salary of $100 per month. The injuries suffered were a permanently loosened and enfeebled knee joint, the crushing in of the chest, ribs being broken both in front and rear and penetrating not only the outer membrane, but the pericardium itself, leaving adhesions between these membranes which the physicians declared were certain to be permanent, and to interfere seriously with any violent exertions, while suffering might not be great in the case of moderate exertions. His expenses of cure had been about $500. His sufferings had been great, and had continued in some degree up to the time of the trial, two years after the injury. He still occupied his place in the fire department, but found it extremely difficult, by reason of his injuries, to perform certain of the work necessary in fighting fires. In this situation it is impossible to say that there was no evidence from which the jury might have found his earning capacity was impaired. His profession, in which he had attained high standing and high compensation, called for extreme physical vigor. He could not hope to progress, nor, probably, to retain his then position permanently, with the impairment which the evidence tended to disclose. At Iqast the jury might legitimately have drawn such inference. Of course, they had the advantage of opportunity to observe the — 226 — man himself upon the stand before them. In view of all these considerations, we feel unable to say that the damages exceed what the jury might have believed proper compensation for all the injuries suffered, without passion or prejudice, and cannot, therefore, hold that error was committed by the trial court in ordering judgment for the amount so found. We find no error which should reverse the judgment. By the Oowt. — Judgment affirmed.