Canning v. Chicago & Milwaukee Electric Railway Co.

The following opinion-was filed April 11, 1916: Vinje, J. Error is assigned because the.special verdict did not properly submit the issue of defendant’s negligence to the jury. The fifth question covers that issue properly and is in form substantially as proposed by the defendant. It finds a want of ordinary care on the part of the motorman under the circumstances shown by the evidence. It is a verity that the car ran into the plaintiff. By negativing gross negligence the jury found that the motorman did not wilfully run into him. The collision, therefore, occurred through inadvertence on the part of the motorman. This inadvertence the jury finds to be his failure to observe plaintiff in time to [451] avoid tlie collision, evidently relating to a time after lie stopped as found by tbe jury; and the jury find sucb failure to observe was due to a want of ordinary care, for bad be exercised sucb care be could bave stopped tbe car in time to avoid a collision. Tbe findings taken together amount to a finding that tbe collision occurred through a want of ordinary care on tbe part of tbe motorman. Sucb finding is sustained by tbe evidence. This want of ordinary care is found to be tbe proximate cause of plaintiff’s injury. Hence tbe negligence of defendant is sufficiently found. Tbe court gave an instruction as to tbe relative weight of positive and negative testimony. In view of tbe answers given by tbe jury this became material only as it bore on question I, relating to plaintiff’s contributory negligence, and only in respect to whether or not plaintiff stopped as tbe jury found be did. Several witnesses testified that they saw him stop, others that they did not observe him stop. In sucb state of tbe evidence tbe instruction was proper. It cannot be said as a matter of law tbat plaintiff was guilty of contributory negligence in attempting to cross ahead of tbe car. Tbe stopping of tbe car in tbe middle of tbe block and about forty feet away from him might well be taken by him as an invitation to cross first, even if tbe car did bave tbe right of way. His conduct was properly left to the jury to characterize as negligent or not. Plaintiff after tbe accident consulted Dr. J. E. Purtell, who treated him for some time. Upon direct examination plaintiff, in testifying about tbe result of bis injuries, said among other things tbat be was unable to retain bis urine and tbat when be visited Dr. Purtell about tbe 18tb of May be told tbe doctor about it, tbat is, about bis inability to retain his urine. Defendant put Dr. Purtell on the stand for the purpose of denying tbat plaintiff on tbe 18th of May or at any other time told him so. Tbe evidence was excluded on tbe ground tbat under sec. 4015, Stats. 1915, tbe doctor was dis [452] qualified to testify as to what plaintiff told him. The exclusion of such evidence was error. Plaintiff opened the door for it on his direct examination when he stated what he told the doctor. Had he not done so, of course the doctor could not have testified on the subject against plaintiff's objection. In view, however, of other evidence which the jury was warranted in believing and which quite satisfactorily shows severe injury, we have reached the conclusion that the error does not demand a reversal of the judgment. By the Court. — Judgment affirmed. A motion for a rehearing was denied, with $25 costs, on June 13, 1916.