Rieck v. Chicago & Milwaukee Electric Railway Co.

BabNes, J. The plaintiff’s son, who was driving the automobile, testified that he looked to the south as' soon as he emerged from the alley and had a clear view, and that there was no street car in sight; that he was going about six miles an hour and turned north, and after proceeding northward from fifteen to twenty-five feet his auto was overtaken and struck by a north-bound street car. The plaintiff testified that he kept looking to the south after the auto emerged from the alley until it turned to the north, and that the street car was not within sight. He agreed with his son. as to the point of collision. It was a little past 5 o’clock on the afternoon of' August 7th, and there were no teams to obstruct the view. There is some dispute as to how far the street car would have to travel after coming within the range of vision of plaintiff and his son and until it proceeded as far north as the alley. As we understand the evidence, plaintiff places this distance at 241 feet and defendants place it at 300 feet. There is some obscurity in the testimony on this point, and we are not sure that we are giving the exact claims of the parties, but the variance, if there is any, is not substantial. The defendants’ contention in regard to the accident was that the auto came out of the alley at a high rate of speed as the car was approaching; that the motorman, supposing the auto was going" to cross the track in front of the car, applied the brake and checked the speed; that the auto, instead of crossing, turned north and came to a standstill, or nearly so, and that the car, before it could be brought to a full stop, struck the fender of the auto and dented it. The force of the [235] collision threw tbe plaintiff against tbe glass windshield. The anto was not broken and apparently was not much injured. The evidence on the part of defendants tended to show that the car was proceeding slowly from the time 'it turned onto Fifth street until the collision occurred. Four witnesses testified that the car stopped after rounding the turn from Clybourn to Fifth street and discharged passengers. No witness testified that the car did not'make this stop. The building at the northwest corner of the Clybourn and Fifth street crossing was rounded or cut away-at the corner to some extent, so that a person coming out of the alley could see up Clybourn street to the west some distance. After the defendants rested the plaintiff’s son was recalled and said that sinqe giving his first testimony he had gone back and examined the locus in quo and was satisfied that he had made a mistake in locating the point of collision and that it actually occurred sixty-two feet north of the alley. ITe fixed this point by reference to a pole in the street. If we accept as an established fact in the case the stoppage of the car at the corner of Clybourn and Fifth streets, we think the plaintiff made no case. It seems impossible that the car could descend the Clybourn-street hill, make the stop, and overtake the auto while it was going northward even the sixty-two feet last claimed. The plaintiff was looking until the auto turned north. The car would have to travel between four aiid five times as far as the auto did in order to overtake it, and of course four or five times as fast if it made no stop. The driver’s estimate of five or six miles an hour may not be strictly accurate. ITe referred to the rate of speed at which he was going as “creeping,” but inasmuch as the auto was good for twenty-five miles an hour, this language is not very significant, and can hardly be understood as qualifying his repeated statement that he knew he was going five or six miles an hour. When we consider that the curve would have to be rounded slowly, that it would require some time to stop and [236] let passengers off, that it would take a little time to get under motion, and again some time to slow down the car to almost a standstill, and that this all had to he done in about 300 feet and while the auto was going less than seventy feet, it is apparent that the car would have to travel a part of the time at an unheard-of rate of speed in order to overtake the auto. If we were to assume that the auto traveled seventy feet after the plaintiff last looked before it was struck and that its average speed was only live miles an hour, it would make the distance in about seven seconds. But we do not think it can be said as a matter of law that the car did stop at the corner. Either the evidence of defendants’ witnesses that it did stop or that given by the plaintiff and his son is untrue. The statements cannot be reconciled. If the jury elected to believe the plaintiff and his son, they should necessarily disbelieve that offered by the defendants. This they might do. Where, as here, credible witnesses for the defendant testify to an independent fact, and there is no evidence to the contrary, their testimony cannot be disregarded. But where witnesses for the plaintiff testify to other matters which if true necessarily show that the evidence of defendant’s witnesses is not true, a jury question is presented. This is well illustrated at times in criminal cases where one or more witnesses testify that they saw the accused commit an offense at a certain time and place, while he produces evidence to show that he was at an entirely different place when the crime was committed. The witnesses on one side or the other are not telling the fact, and it is for the jury to say where the truth lies. Schuster v. State, 80 Wis. 107, 49 N. W. 30. The evidence of plaintiff and his son on this point is not negative testimony. They were looking for a car. There was nothing to obstruct their view. There is no claim that the light was not good. They could have seen the car if it had been in sight. They did not see it. Accepting those statements as true, the conclusion logically and [237] necessarily follows that the car was not-in sight while they were looking. If we were to accept as true the evidence given by defendants’ witnesses and of those sworn on behalf of the plaintiff on direct examination in reference to the point of collision, it would be difficult to say that the case presented a jury question even if the car did not stop at the crossing. On the basis of this evidence, the street car wortld have had to move at an average speed of about seven times as great as that of the auto in order to overtake it. It is hardly credible that the car could have slowed up for the turn and then have slowed down almost to a standstill when the auto was hit and still have acquired the necessary speed to overtake the auto while it wag going from fifteen to twenty-five feet. The only thread on which the plaintiff’s case hangs is the evidence given by the plaintiff’s son on rebuttal. We cannot say that it is incredible that the car running at an excessive and negligent rate of speed could not have been out of sight when the auto turned north and still have overtaken the auto while it was traveling sixty-two feet, provided no stop was made at the corner. The thread is a pretty slender one, so slender that if the judgment of the civil'court had been affirmed we probably should not disturb it. Several witnesses for the defendants, as well as the plaintiff himself, contradict the son, and the latter agreed with the other witnesses when first examined. He made at least a plausible explanation for the change made in his evidence, which a jury might accept. It can hardly be said that the evidence is inherently incredible, and, unless it can be, the jury might find that it was true, although the evidence greatly preponderated the other way. Verdicts have been upheld in a number of cases that were about as contrary to the clear preponderance of the evidence as would be a verdict for the plaintiff in the present case. Hardy v. Milwaukee St. R. Co. 89 Wis. 183, 61 N. W. [238] 771; Bading v. Milwaukee E. R. & L. Co. 105 Wis. 480, 81 N. W. 861; Collins v. Janesville, 117 Wis. 415, 94 N. W. 309; Suckow v. State, 122 Wis. 156, 99 N. W. 440; Champarte v. La Crosse City R. Co. 121 Wis. 554, 99 N. W. 334; Baermann v. Chicago & M. E. R. Co. 153 Wis. 235, 140 N. W. 1119. By the Court. — Order affirmed.