Glettler v. Sheboygan Light, Power & Railway Co.

Siebecker, J. Motormen in charge of electric cars are required, in the exercise of ordinary care, to keep a proper lookout as to the tracks and the streets upon which the cars are-operated to avoid collision with persons and vehicles on the street. In addition to his duty of operating and managing the car and keeping a proper lookout along the track, he must observe the streets adjacent to the track sufficiently to enable him to ascertain' whether persons are approaching or are about to approach the trade, and, if such persons are in danger of being struck by the car, he must do all that an ordinarily careful and prudent motorman would do to avoid doing-injury to any such person. “Obviously, those principles require a motorman at a street crossing to exercise greater care than between crossings, and much more care in case of very young children approaching-the track unconscious of an approaching car, or being so circumstanced as to suggest a probability of such approach, than in case of adults.” Forrestal v. Milwaukee E. R. & L. Co., 119 Wis. 495, 91 N. W. 182; Anderson v. Minneapolis St. R. Co. 42 Minn. 490, 44 N. W. 518. If the situation here presented is such that the motorman could have seen the plaintiff approaching the car at a distance sufficient to have enabled him, by the exercise of ordinary care, to have stopped the car before the- collision, then his failure to observe plaintiff cannot relieve the company [142] from liability for tbe damage proximately resulting therefrom. Appellant strenuously urges that tbe evidence fails to present a situation from which the jury could infer that the motorman omitted to exercise the 'care required of him at the time of the accident to avoid running against the plaintiff. In this contention it is claimed that the evidence permits only of the inference that, from the time the plaintiff could have been seen approaching the tracks within the field of observation of the motorman, the car could not have been stopped before the accident. An attentive reading of the case does not sustain this view., It appears that the street was wholly unobstructed at the crossing arid in the vicinity of the accident. That the motorman had a view of all the street crossing within the limits of the boundaries of Eighth street as he approached New York avenue cannot be questioned. There is testimony tending to show that as the car approached or was near the south foot-crossing of the avenue the plaintiff was within the limits of Eighth street and was running rapidly north by east toward the place where the accident occurred, somewhere from fifty to sixty feet from the car. We find no support for the claim that it is shown that the child’s presence within the course it followed was not necessarily within the field of the motorman’s view as he approached and proceeded onto New York avenue and thence north toward the place where he struck the plaintiff. It also appears that plaintiff must have been from fifty to sixty feet distant when he could first have been observed by the motorman. The inquiry, therefore, is whether the motorman could have stopped the car by applying the brake in the usual manner within this distance. The speed of the car, according to the evidence, did not exceed seven to eight miles an hour, and it is said to be possible to stop a car running at this speed in from fifteen to sixty feet. This furnishes the field within which it was for the jury to find the ultimate fact as to this issue. They have answered the inquiry in response to a special question [143] under the instruction of the court. Their finding cannot be ■disturbed for want of evidence to support their conclusion,, and the finding that the motorman was negligent in not keeping a proper lookout for the child is fully sustained. Error is assigned upon' the verdict finding that defendant "was negligent in requiring the motorman on this car to perform the duties of conductor in addition to those of motorman. In the case of Dahl v. Milwaukee City R. Co. 65 Wis. 371, 27 N. W. 185, it was held that if street-car drivers were required to' perform duties in addition to those required of them as drivers which materially interfered with their duty •to prevent accidents by keeping a proper lookout for people approaching the track, and if it appeared that an injury resulted which would not have occurred but for the performance of such additional duties, then such 'management of the business constituted negligence. There is no dispute but that the motorman of this car performed the additional duties of conductor. There is some evidence tending to show directly that the motorman was engaged in looking after the payment •of fares when he should have observed the plaintiff attempting to cross the street. Other facts and circumstances regarding the conduct of the business are corroborative of the fact that imposing the conductor’s duties upon the motorman interfered with his performance of his duties as motorman. This evidence made the question of defendant’s negligence in this respect a proper inquiry for submission to the jury. It was further found that the negligence of the defendant in not keeping a proper lookout, and the negligence of imposing conductor’s duties on the motorman, were the proximate -causes of plaintiff’s injury. This is claimed to be error, because it was not ascertained to which of the two grounds of negligence found the accident was attributable. It seems apparent that the jury found that both acts of negligence shared in producing the result. Since defendant is charged with the ■consequence of both negligent acts and the result is the nat* [144] ural and probable result of tlieir concurrence, it is of no moment which of the two negligent acts was first and which was last in point of time. The finding in effect is that the injury would not have resulted but for defendant’s negligence, and that both negligent acts shared in producing the result. Kraut v. F. & S. P. C. P. R. Co. 160 Pa. St. 327, 28 Atl. 783; McCoy v. Milwaukee St. R. Co. 88 Wis. 56, 59 N. W. 453; Grant v. Keystone L. Co. 119 Wis. 229, 96 N. W. 535. Under such circumstances the injury inflicted may be said to be the result of the concurrence of the two negligent acts, and to be proximately caused by them. Appellant’s contention that the court erred in not instructing the jury specially that, if the plaintiff suddenly and unexpectedly attempted to cross the track, then such conduct would be the proximate cause, is answered by the finding of fact in the special verdict, and the evidence supporting it, that the motorman could have seen him approaching. It appears that plaintiff pursued a continuous course from the time he was seen on the street, that he approached from the southwest corner of Eighth street and the avenue, and thence proceeded northeast to where he was struck by the car. This shows that the motorman would obviously have been apprised of his approach to the track had he exercised due care in observing this part of the street. Appellant did not specially request such instruction. If it deemed it necessary and proper such request should have been made in writing. The instructions given upon this branch of the case were sufficient, and properly covered the case as presented by the evidence. Further criticism is made of that part of the court’s charge to the jury stating that if the jury found the defendant guilty of negligence in the conduct of the business, in requiring the motorman to perform the duties of conductor, then it remained to be determined whether it was “a proximate or the proximate cause” of the injury to plaintiff. In connection with this instruction the court correctly defined to the jury [145] wliat constitutes proximate cause in the law of negligence, wbicb clearly informed them of tbe meaning of the language-excepted to. Nor do we find any ground for the objection that the court improperly invaded the province of the jury and inf ormed them what the evidence established as the proximate cause of the accident. The instructions were free from any suggestion of what facts the evidence established as regards the issues submitted to the jury. Exceptions are argued as to the qualification of a witness testifying to the speed of the car, and as to the competency of the evidence of a witness testifying to the distance within which a car could be stopped. From an examination of these exceptions we are convinced that the witnesses who testified to the speed of the car were qualified, and that the opinion evidence giving the distance within which the car could be stopped was competent and proper. The contention that appellant was prejudicially affected by improper remarks of respondent’s counsel in his comments on the case before the jury is not borne out by the record. The remarks excepted to were made in argument as to the probable force of evidentiary facts and the claim predicated thereon by appellant’s counsel. The court admonished the jury, in response to the objection, that it was their province to determine the weight of such evidence, and this excluded the inference that counsel’s characterization of the evidence was given controlling weight by them. We deem that this was sufficient to remove any probability that the jury had been prejudiced by such remarks. These considerations cover all the material questions presented by the record and call for affirmance of the judgment. By the Court. — Judgment affirmed.