Lotharius v. Milwaukee Electric Railway & Light Co.

Siebecicee, J. Upon the plaintiff’s appeal the question is, Do the facts alleged in the complaint show that the plaintiff cannot recover on the first count, charging the defendant’s servants with being guilty of ordinary negligence in running the street car which collided with the plaintiff and caused him personal injury ? , The complaint states the facts-of the alleged collision of the street car and the position and conduct of the plaintiff at the time of the accident with sufficient particularity to show the situation and his conduct in [188] the transaction that led to the happening of the accident upon which liability is asserted. Erom these allegations it appears that the plaintiffs automobile stopped when it was over the east street-car track and in such close proximity to the west track that if he stood on the west side of his automobile an approaching street car must collide with him. It also appears that this was obvious and known to him and that he had an unobstructed view of the surrounding conditions. It is alleged that the said “tracks of the street railway, at the point where the said automobile stopped, were straight for a long distance both north’ and south of said automobile,” and “that he could at any moment have observed approaching cars from either direction.” It is undisputed that the plaintiff was fully aware that the street cars were then running on these tracks, and that a glance to the north or south, while standing in this dangerous position, would have informed him of the approach of any street car and enabled him to step out of the course of the car and thus have avoided the danger. The facts alleged clearly show that the plaintiff stepped into this dangerous place, knowing that a street car could not pass without colliding with him; that if he had momentarily glanced to the north and south he could have observed 'approaching cars; and that under the circumstances there was nothing to prevent him from stepping aside into a place of safety and avoiding a passing car. From such conduct on his part but one reasonable inference can follow, namely, that he omitted to exercise the care that ordinarily prudent persons, under similar circumstances, would exercise for their safety; and there can be no question but that the plaintiff’s conduct in this regard proximately contributed to cause the injuries of which he complains in this action. We are convinced that the trial court properly sustained the demurrer to the alleged cause of action in the first count of the complaint. The only point made by the defendant on its appeal from the order is that the court, in its order overruling the defend [189] .ant’s demurrer to tbe second cause of action, erroneously ordered “that the said plaintiff have judgment thereon, but with leave to the defendant to answer.” It is asserted that if the defendant does not answer in the case this order permits the plaintiff to have judgment in his favor on his complaint without proving his case by satisfactory evidence. We do not' consider that this interpretation of the order is correct. The meaning of the phraseology of the order must be ascertained in the light of the case as it stands upon the pleadings after the demurrer drops out. If the defendant fails to answer, then the plaintiff is of course entitled to judgment on his second cause of action alleged in the complaint according •to law, which in this case means after making due proof of .the alleged cause of action. Hyman v. Susemihl, 137 Wis. 296, 118 N. W. 837. By the Court. — The order is affirmed on both appeals.