Turtenwald v. Wisconsin Lakes Ice & Cartage Co.

MARSHALL, J. The complaint admits of a construction charging defendant with being guilty of a greater wrong than mere failure to exercise ordinary care, — with actual intent on the part of the driver, or that disregard for the safety of persons lawfully in the street amounting to the same thing, to drive the team upon appellant, and that defendant is answerable for the wrong. There are some indications that such was the purpose of the pleader. Counsel ex industria proved that the teamster was kept in respondent’s employ for some two years after the accident and not discharged on account thereof. While the complaint contains language in one aspect charging the teamster with the high degree of wrong indicated, there is no allegation that respondent ratified the act. Evidence was allowed on that point, but there was no evidence indicating wanton conduct on the part of the teamster. If we were to view the complaint as stating a cause of action for damages caused by gross negligence, so called, in any aspect of the case, the nonsuit would necessarily have to be, approved, since mere proof of an injury caused by breach of duty to exercise ordinary care is not sufficient to establish a cause of action for a wanton injury, and a person cannot be permitted in an action charging the latter to recover for the former, if seasonable objections are made. Wilson v. Chippewa Valley E. R. Co. 120 Wis. 636, 98 N. W. 536. How [69] ever, on the whole it seems the parties on both sides, notwithstanding the peculiar language of the complaint, treated the action in the court below and in this court as one to recover compensation for damages attributable to ordinary negligence. In that situation it seems we are warranted in treating the case in the same way, notwithstanding the charge of negligence is coupled with charges of reckless, wilful, and malicious conduct. It Would be far safer in drafting a complaint in an action like this, to appreciate that a claim for an injury wantonly inflicted is one thing, and one for an injury attributable to mere actionable negligence is a far different thing (Bolin v. C., St. P., M. & O. R. Co. 108 Wis. 333, 84 N. W. 446), and if it is desired to state a cause of action of the latter character, the pleader should omit all such words as “wilful,” “reckless,” and “malicious,” as regards the conduct of the defendant. There is no claim, as we understand it, but that there was evidence from which the jury may reasonably have found negligence on the part of respondent’s servant which was a proximate' cause of the injury appellant received. The fact that such servant allowed the horses to proceed along the street without guidance, his attention being entirely diverted from them by reason of his performing the labor of preparing the ice for the deliverymen, thereby throwing upon other persons lawfully using the street the entire burden of keeping out of the way of the horses, is too suggestive of negligence to warrant holding to the contrary as a matter of law. The argument of counsel indicates that the trial court viewed the evidence as conclusively showing that appellant was traveling west on the avenue somewhat north of the pathway of the horses, shortly before he was injured; that had he kept on his course, and the horses had kept their course and overtaken him, he would have been in no danger; and that the accident occurred by reason of his suddenly turning to the left into the pathway of the horses to empty his shovel [70] where litter previously gathered had been deposited. It seems that counsel for respondent appreciate that the rule adopted was at least not free from doubt, as they invoke the rule stated in Powell v. Ashland I. & S. Co. 98 Wis. 35, 38, 73 N. W. 573, that ordinarily a trial judge in deciding whether the evidence in any reasonable view of it will support a verdict in favor of the plaintiff has some advantages over an appellate court, and that such circumstance, in doubtful cases, is entitled to considerable weight upon appeal. That cannot cut any figure in this case further than to support the learned judge’s conclusion that appellant suddenly stepped in front of the horses and was ran down by them before the teamster had time to stop them. Assuming that such was appellant’s course, can we say as a matter of law that he was guilty of contributory negligence ? Should we say that a street cleaner must be constantly on the alert to keep out of the way of teams coming from either direction and that if while at work in the street he steps aside from a direct course without looking behind him to- see if there is a team coming from that direction he is guilty of want of ordinary care as a matter of law? That would be rather a severe rule. Appellant was absorbed with his duties. The noise of his shovel, as he pushed it along the surface of the street, might well excuse him for failing to observe the approach of the team by the sense of hearing. So'it comes down to this: Is want of ordinary care to be conclusively inferred merely because appellant turned to the left to empty his shovel without looking to see if there was a team approaching from behind him? It is considered that such proposition must be answered in the negative. Probably the trial court did not give proper significance to the circumstance that appellant’s duties required him to move about without any regard to taking any particular course along the street, and to make frequent trips to the side of [71] tbe street to empty his shovel; that his situation was quite different from that of an ordinary traveler upon the street. By the Gourt. — The judgment appealed from is reversed, and the cause remanded for a new trial.