Kowalkowski v. Milwaukee Northern Railway Co.

The following opinion was filed April 9, 1914: "WiNsnow, C. J. The appellant’s case is based on the proposition that the evidence shows contributory negligence on the part of the plaintiff as matter of law, and to this proposition we direct our attention. [476] The law is well settled in this state that ordinary care requires a person about to cross or drive on to a street railway track to look in both directions and listen for approaching cars at a point where it is reasonably certain that such efforts will accomplish their purpose. In this respect the duty ■of the traveler approaching a street railway track is identical with the duty of the traveler approaching the track of a steam railway. Tesch v. Milwaukee E. R. & L. Co, 108 Wis. 593, 84 N. W. 823; Cawley v. La Crosse City R. Co. 106 Wis. 239, 82 N. W. 197; Grimm v. Milwaukee E. R. & L. Co. 138 Wis. 44, 119 N. W. 833. When, however, the question arises as to the duty of a person traveling upon the street lengthwise of the street railway track, it is plain that there can be no very close analogy between steam railroads operating cars upon their own right of way and street railroads operating cars upon the public street. The difference of situation necessarily creates different standards of conduct. The traveler has no right to travel upon the inclosed right of way, but he has a right to travel upon that part of the highway covered by the street railway track when it is not required for the passage of street cars in the performance of that duty which street-car companies assume to the public. From the very nature of the situation the citizen must defer to the street car when using this part of the public street. The street car is of great size, must travel at a considerable speed to perform its duties as a common carrier under modern conditions, necessarily acquires great momentum, cannot be momentarily stopped, and cannot turn out. The deference required of the traveler is not so much deference to the street-car company as it is deference by .one citizen to that very large number of his fellow-citizens who are being constantly transported by street cars, who cannot themselves control the movements of the cars, and whose right to speedy and safe transportation upon the vehicles of a common carrier must naturally be held to be paramount. Watermolen v. [477] Fox River E. R. & P. Co. 110 Wis. 153, 85 N. W. 663. So it is manifestly the duty of tbe traveler who chooses to travel along that part of the street occupied by the street railway track to give way in due season to an approaching car, whether approaching from the front or the rear, and it follows necessarily that it is his duty to exercise ordinary care not only to discover when a car is approaching, but to turn off from the track in time to prevent a collision. The question here is whether the evidence conclusively shows that the plaintiff •failed to exercise this degree of care at the time of the accident, and this question is a reasonably close one. The question of ordinary care is generally a relative question, depending upon the facts surrounding each case. Eor this reason the citation of adjudicated cases is not very helpful, as there is always a difference in the facts. There is nothing in the present case to indicate that the plaintiff was negligent in going on to the track in the first instance. If his testimony is to be believed, and there is nothing to shake it on this point, he waited until a car from the west passed him and went eastward, so that the track was clear in both directions before he ventured on the track. The night was dark, the highway (except where the track was laid) so rough as to make traveling hard, if not positively dangerous. Naturally he chose the part covered by the track and proceeded westward. It was his duty unquestionably to make frequent observation to the rear to see whether a car was following him. The blocks on Atkinson avenue were about 350 feet long. The plaintiff claims that he looked back about every half block from 'Twelfth to Fourteenth streets, and saw no car coming until his last observation. Had it been daylight at the time, this evidence would unquestionably have to be rejected as incredible, for the track was clear and no sufficient difference existed in the grade of the track to affect the ability to see a car approaching from the rear. It is contended that the same •conclusion must be reached notwithstanding the fact that it [478] was dark, because it is said that the plaintiff must have seen the headlight of the car which struck him and which had turned on to Atkinson avenue at Sixth street. Had this car borne an arc headlight on the dashboard, such as the interurban cars bore, this contention would be very difficult, if not impossible, to meet. It bore, however, only a sixteen candlepower incandescent light with a reflector on the forward part of the roof. It may well be that this comparatively feeble light in the position in which it was would not necessarily attract the attention of a man taking occasional glances backward, or if seen would not be identified as the light of an approaching car. The motorman testified that the night was gloomy, that there had been snow flurries during the day and were snow flurries that night. If the plaintiff’s testimony is to be believed, he saw the car the last time he looked around and immediately proceeded to turn his horse to the left into the highway proper. This must under all the circumstances, have been a slow operation. The wagon contained a ton of coal beside the driver and the horse was compelled to make his way into and over a rough and hummocky country road. The movement had been so far accomplished that the car-struck only the last wheel of the wagon as it was clearing the south track. The time taken in this operation must have-been considerable. It seems to demonstrate that the car (if moving at anywhere near the rate testified to by the plaintiff’s witnesses) must have been a considerable distance away when the plaintiff looked around and saw it approaching. It appeared by the evidence of the motorman that the car was about ten minutes behind time. While the motorman denied that he was attempting to make up time, there was sufficient evidence to justify the jury in concluding that the-car was going at a speed of twenty miles or more an hour at the time, that the gong was not rung nor the speed slackened as the car approached the plaintiff’s wagon, — in fact that no attempt was made to stop it until the wagon had been struck. [479] Of course, tbe failure of tbe motorman to perform bis duty does not excuse a traveler from failure to perform bis duty, i. e. to exercise ordinary care. However, tbe fact that signals are required to be given and normally are given as a car approaches from tbe rear is a fact wbicb is entitled to be consi diered when tbe mind is endeavoring to determine what tbe ordinary man would do under tbe circumstances which surrounded tbe plaintiff. In other words, it is one of tbe •circumstances. In view of all tbe facts, and especially in view of tbe conclusion reached by tbe trial judge to tbe effect that there was sufficient evidence to support tbe jury’s findings, we feel that we cannot say, as matter of law, that tbe plaintiff failed to •exercise ordinary care. By the Gourt. — Judgment affirmed. A motion for a rehearing was denied, with $25 costs, on •June 17, 1914.