Vetter v. Southern Wisconsin Railway Co.

KeRwiw, T. The accident complained of occurred on South Park street in the city of Madison, between Erin street and the city limits. South Park street is a macadamized street with cement curbs, practically level, and running in a. northerly and southerly direction. It is thirty-six feet wide from curb to curb, with a street-car track in the center and a space of fifteen and one-half feet between the rail and the-curb. Commencing at a point about seventy-five feet from the city limits the track of the defendant begins to curve to-make tire turn onto Oregon road, somewhat narrowing the-space between the rail and the east curb of the street, so that at the city limits this space is only about nine feet eight inches wide. Erin and Emerald streets meet South Park [299] street at right angles. The block between Erin and Emerald streets is about 316 feet long, and the block between Erin street and the city limits is 162 feet. Defendant’s street-car track runs on Emerald street, turns on South Park street, and runs southerly on Oregon road. The greater part of the-block between Erin and Emerald streets is vacant and practically unobstructed, so that one driving along South Park street between Emerald and Erin streets can look for some-distance up Emerald street. On the day in question, about 3 o’clock, the deceased was driving a team of horses attached to a broad-tired lumber wagon with a box thereon south along the east side of the-street between Emerald street and the city limits, sitting on-a high seat, with the reins around his body over his shoulder. The street between him and the city limits, as well as between-him-and Emerald street, was unobstructed. While thus driving his team, one of the defendant’s cars turned from Emerald street onto South Park street. There is evidence tending-to show that when the car was within less than thirty feet of' deceased he drove onto or close to the track and directly out again, but not soon enough to prevent a collision between the-hind wheel of his wagon and defendant’s car, which collision produced the injury complained of. The jtrry found by their answers to the seventh and .eighth-questions that before deceased’s team entered upon the track or went so near that the car could not pass without striking his wagon, he did not look and listen for the approach of a car from the rear, and also that he could, by the exercise of' ordinary care and prudence, have seen the approaching car in time to have avoided the accident. These findings are-fully supported by the evidence and entitle the defendant to-judgment on the verdict unless their effect be nullified by the-ninth finding of the special verdict, which finds that the deceased was not guilty of any want of ordinary care which contributed to the accident. Dummer v. Milwaukee E. R. & [300] L. Co. 108 Wis. 589, 84 N. W. 853; Tesch v. Milwaukee E. R. & L. Co. 108 Wis. 593, 84 N. W. 823; Morice v. Milwaukee E. R. & L. Co. 129 Wis. 529, 109 N. W. 567; Cawley v. La Crosse City R. Co. 101 Wis. 145, 77 N. W. 179; Hogan v. Winnebago T. Co. 121 Wis. 123, 98 N. W. 928; Hanlon v. Milwaukee E. R. & L. Co. 118 Wis. 210, 95 N. W. 100; Stafford v. Chippewa Valley E. R. Co. 110 Wis. 331, 85 N. W. 1036; McClellan v. Chippewa Valley E. R. Co. 110 Wis. 326, 85 N. W. 1018. The court changed the answer to the ninth question from “ETo” to “Yes,” and this ruling is complained of. The answers of the jury to the seventh and eighth questions found the facts which established the contributory negligence of the plaintiff. It is true that contributory negligence is or may be a mixed question of law and fact, but where the facts are found or are undisputed showing contributory negligence and there is no room for conflicting inferences upon the established facts, then the conclusion of law necessarily follows. The court was therefore clearly right in changing the answer to the ninth question to correspond with the facts found by the jury in the seventh and eighth questions. Wanzer v. Chippewa Valley E. R. Co. 108 Wis. 319, 84 N. W. 423; St. Paul B. Co. v. Kemp, 125 Wis. 138, 103 N. W. 259; Hogan v. C., M. & St. P. R. Co. 59 Wis. 139, 17 N. W. 632; Martin v. Bishop, 59 Wis. 417, 18 N. W. 337; Fick v. C. & N. W. R. Co. 68 Wis. 469, 32 N. W. 527, Rowley v. C., M. & St. P. R. Co. 135 Wis. 208, 115 N. W. 865; Hogan v. Winnebago T. Co. 121 Wis. 123, 98 N. W. 928; Rahr v. Manchester F. A. Co. 93 Wis. 355, 67 N. W. 725; Krause v. Busacker, 105 Wis. 350, 81 n. W. 406. Error is assigned because of refusal to submit the following question in lieu of question Ela 7 submitted by the court: “Was the deceased just before the accident intending to •drive upon or across the track of the defendant % . If you answer such question, ‘Yes/ then did the deceased, before nearing or entering upon the track, look and listen for the approach of the ear from the rear ? ” [301] We think there was no error in the refusal to submit this question. The fact that the decease'! was within the zone of danger when struck was undisputed, and he was hound to look and listen before entering the place of danger, and it was entirely unnecessary to submit to the jury what the deceased was intending to do just before the accident. Some criticism is made upon the instructions and failure to instruct respecting contributory negligence, but we find no prejudicial error in this regard. The facts constituting contributory negligence were fairly submitted to the jury and found against the plaintiff. Therefore the defendant was entitled to judgment. It follows that the judgment must be affirmed. By the Court. — The judgment of the court below is affirmed.