Zimmermann v. Mednikoff

Eschweiler, J. It is contended by appellants that the' findings of the civil court are contrary to the clear preponderance of the evidence both on the question of contributory negligence and negligence on the part of the defendant, and that the evidence establishes contributory negligence on plaintiff’s part as a matter of law. The civil court found, among other things, that at the time in question, while the rear door of the street car was open for the purpose of receiving the plaintiff as a passenger, the defendant carelessly, negligently, and unlawfully attempted to drive said automobile past the rear door of said street car in violation of the ordinance and statute below quoted, and that in so doing the defendant negligently drove the automobile upon the plaintiff, throwing him to the ground and causing the injuries, some of which were found to be permanent; that the plaintiff acted with due care and was in no wise negligent in the premises. The plaintiff offered in evidence and relied upon a city ordinance of Milwaukee which provides, so far as material to this case, as follows: “Section 1247. And every person operating an automobile . . . shall stop whenever it passes a street car which is either taking on or letting off passengers.” He also relied upon sec. 1636 — 49, Stats., the material parts of which are as follows: “The operator or driver of any vehicle, when any street car - is actually taking on or discharging passengers at the crossings or intersections . . . shall stop . . . until such passengers shall have been taken on or discharged.” [336] Under the testimony in the case the plaintiff had undoubtedly assumed the position of a passenger towards the street car then standing with its open door as an invitation’ for him to enter. Karr v. Milwaukee L., H. & T. Co. 132 Wis. 662, 113 N. W. 62; Lugner v. Milwaukee E. R. & L. Co. 146 Wis. 175, 180, 131 N. W. 342. As to such passenger the defendant owed the duty of stopping, as.required by the ordinance and the statute above quoted. This, however, did not absolve the plaintiff from the duty also resting upon him to exercise, under the circumstances, ordinary care for his own safety, and the violation by a driver of such ordinance or statute, or even more stringent ones, would not absolve the plaintiff from that duty. Ludke v. Burck, 160 Wis. 440, 152 N. W. 190; Riggles v. Priest, 163 Wis. 199, 157 N. W. 755. In considering this question of contributory negligence of fhe plaintiff, however, it must be determined under all the circumstances surrounding the situation, and one of those circumstances is that a person so situated has the right to presume that the defendant would comply with the law embodied in the statute and the ordinance requiring such a stop; in other words, that he is not required to anticipate that defendant is about to violate or is violating such provisions. 29 Cyc. 516; McGourly v. DeMarco, 200 Mass. 57, 85 N. E. 891; Baker v. Close, 204 N. Y. 92, 97 N. E. 501; Mosso v. E. H. Stanton Co. 75 Wash. 220, 134 Pac. 941; Medlin v. Spazier, 23 Cal. App. 242, 137 Pac. 1078; Johnson v. Young, 127 Minn. 462, 149 N. W. 940; Vesper v. Lavender (Tex. Civ. App.) 149 S. W. 377. The trial court was justified, therefore, under the evidence, in finding that the plaintiff was not negligent at the time of the injury. There is a conflict in the testimony as to the operation of the automobile just preceding and at the time of the accident, but there is no dispute but that the street car was at a full [337] stop, tbe car door open as an invitation to passengers, and that tbe plaintiff was in tbe act of approaching to enter tbe car just as tbe defendant’s automobile, starting from a point of, rest, attempted to cross tbe patb which plaintiff was taking and wbicb defendant was forbidden by the statute and tbe ordinance to enter. There was therefore evidence from wbicb tbe court might properly find that tbe injury resulted from defendant’s negligence. Complaint is made that tbe damagés are excessive. It appeared on tbe trial in May, 1916, tbe accident occurring November 23, 1915, that tbe injuries plaintiff bad received to bis right shoulder bad not yet healed, that there was an inflamxfiatory condition in tbe joint, that it was problematical at'tbat time whether tbe usefulness of tbe joint would be restored, that tbe chances were that tbe injury to tbe shoulder would be permanent and that be would be apt to suffer for a long time from tbe injury, that tbe wrist was injured, with a reasonable certainty that it would be permanently so, and that it was painful and affected by labor. There is also testimony indicating that for a period be was out of work as a consequence of tbe injury. We cannot say from tbe record that error was committed in allowing the damages to stand as assessed by the civil court. By the Court. — Judgment affirmed.