Speakes Lime & Cement Co. v. Duluth Street Railway Co.

Jones, J. In the first and most important cause of action appellant’s attorneys rely greatly on the facts that there was no ordinance restricting the rate of travel at the — 479 — point where the accident occurred; that for a long distance there were no intersecting streets, and that no danger was to be apprehended of travel across the track; that the drivers of the trucks were aware of the rate of speed usually traveled by the street cars, and, as claimed, that they observed that at the time in question the street car was going faster than usual. .Appellant’s counsel also lay great stress on the fact that this was not the usual case of a collision at a street crossing, and argue that this case must be distinguished from that class of cases. It is argued that the drivers of the trucks saw the approaching car in time to avoid the collision and that they should have slowed up or stopped their trucks. It is claimed by respondent’s counsel that the street car was going at the rate of more than forty miles an hour, and there was considerable testimony, which it is unnecessary to detail, from which the jury could have reached that conclusion. It is true there were no street crossings for some distance from the scene of the accident and there was no ordinance regulating the rate of speed. But these facts would afford no excuse for running the car so rapidly that it could not be controlled so as to avoid injury to those lawfully and properly using the street with ordinary care. There was a good deal of travel on the street by all kinds of vehicles. The travel was practically confined on either side of the track to the strip of concrete ten feet in width, which was only seven inches from the overhang of the' car. No vehicle could pass another without passing upon the street-car track. The motorman did not see the truck until within a distance of 200 feet of it and did not see the horse and wagon at all. The headlight on the car. was so constructed' that it did not cast a light which would reveal véhicles at the side of the road. All these were circumstances which the jury had the right to consider in passing on the question of defendant’s negli — 480 — gence, and we cannot say that the jury were not justified in their findings on that issue. The objection that the plaintiff was guilty of contributory negligence is more serious. The drivers of the trucks were going at a speed of about fifteen miles an hour upon a street of the character already described, when, as they overtook a horse and wagon going slowly, they saw defendant’s car coming toward them three or four blocks, or 1,110 to 1,480 feet, away. There was no obstruction of the view and nothing to divert attention from the approaching car. It is the testimony of the driver of the first truck that on first seeing the street car about three blocks away he did not observe that it was going unusually fast, but did notice it on looking the second time when he had entered on the track. When he saw the car he estimated that he easily had time to pass the horse and wagon in safety. On account of the rough space between the track and the concrete on the westerly side the driver was slightly delayed and had some unexpected difficulty^n passing the horse and wagon. In this calculation he was mistaken, and after he had the front part of the truck back upon the concrete the street car struck the front left corner of the box, which was located about eleven feet back of the front end. The jury may well have believed that if the street car had been going at the rate of twenty-five or even thirty miles an hour no collision would have happened. There is sufficient evidence that the truck driver was not mistaken as to the distance of the street car from him when he commenced to turn upon the track. Nor could he then determine that the car was coming at an excessive rate of speed. Although this case differs from most of those cited in that the accident was not at a street crossing, we are not convinced that the rules declared by this court as to crossing cases are entirely inapplicable. In Grimm v. Milwaukee E. R. & L. Co. 138 Wis. 44, 119 N. W. 833, the plaintiff saw a car approaching at a distance of about 900 feet. ’ He be — 481 — lieved that he had time to turn his horse around and cross in safety. It proved that he was mistaken, and the court held a nonsuit improper. In that case there was involved not only the crossing of a street but the turning’ around necessary'to accomplish it. In the present case the street-car zone, under, the conditions existing, had to be used every time vehicles passed each other.,-and we see no reason for laying down any new rule as to negligence. In the Grimm Case the following paragraph was quoted from Tesch v. Milwaukee E. R. & L. Co. 108 Wis. 593, 84 N. W. 823. It was also quoted with approval in the recent case, Dahinden v. Milwaukee E. R. & L. Co. 169 Wis. 1, 4, 171 N. W. 699: “A person desiring to cross a street-car track in- advance of an approaching car has the right of way if, calculating reasonably from the standpoint of a person of ordinary care and intelligence so circumstanced, he has sufficient time, proceeding reasonably, to clear the track without interfering with the movement of the car to and past the point of crossing, assuming that it is moving at a reasonable and lawful rate of speed. If a person, exercising his judgment as indicated, attempts to cross the track, and it turns.out that he has miscalculated, he cannot be held guilty of a breach of duty to exercise ordinary care. If in the circumstances stated, other than the speed of the car, the car is approaching at an unlawful rate of speed, and it is observable by the person about to cross the track, by the exercise of ordinary care, he must take that into consideration in determining whether there is time to safely clear the track; the duty to exercise ordinary care for his own protection not being excused by the fault of anybody else.” On the street in question it was just as legitimate a use of the track of defendant to pass a team as to use it in crossing a street. As in the cases, cited above, the question seems to be whether the drivers of the motor trucks used ordinary care under all the circumstances in calculating that they had sufficient time, proceeding reasonably, to clear the track without interfering with the movement of the car, — 482 — assuming that it was moving at a lawful and-reasonable rate of speed. We are convinced that it was a proper question for the jury. In the second cause of action the damages allowed were only $83.15. .The damages to the street car., as found by the jury, were but $46.50. There was much less testimony as to the manner of the collision, and the printed arguments were comparatively brief. The jury found that defendant’s motorman in charge of the car was negligent. ' Evidence of negligence was certainly more meager than in the first cause of action. There was no direct evidence that the car was traveling faster than the speed testified to by the motorman. The motorman testified that he was going eighteen to twenty miles per hour as he approached defendant’s truck, and speeded up somewhat after he had reason to believe the truck driver knew of his approach. The jury may have felt that this speed was unreasonable in view of the use of the street, its type of construction, and the restricted area then open for travel. The jury may have felt that the motorman’s failure to see the horse-drawn vehicle approaching and about to meet the truck evidenced lack of care. The jury may have believed there was a lack of proper warning of the approach of the car, and may have drawn inferences of unreasonable speed and lack of control from the circumstances and results, of the collision. We cannot say as a matter of law, under the evidence presented, that the jury were not justified in finding that the motorman was guilty of negligence. The jury also found that the truck driver was not guilty of negligence. The verdict stands upon far less secure ground here, if in fact any credible evidence can be found to support it. The facts as to contributory negligence differ radically from those in the first cause of action. There the truck drivers saw the car, believed they had time to pass, did pass, were unexpectedly delayed in getting back — 483 — off the tracks-, and yet missed clearing the car by a- narrow margin. These facts, taken in connection with the fact'that the jury might well have found that the car was traveling-very fast, justified the jury in concluding that the thick-drivers were not negligent. In this- cause of' a'ction, however, the testimony of the truck driver himself’'was that he saw the car, — it was closer than in the first ’ .cause5 of action, — believed he had time to pass, started to do so, and5 was' struck before -he had come fully upon the track and' when he was still'twenty-five feet in front of the vehicle he intended to pass. He did not miscalculate by a- few feet! His calculation, if he made one, was grossly inaccurate. The collision could not have occurred as he stated unless, to compute' from the most conservative of the figures he'testified to; the car had traveled the two and one-half blocks from about where it turned on the main tfack from a switch’at an average speed of. seventy-five miles an' hour. To com1 pute from the figures used by plaintiff’s counsel in their brief the average speed must have been 120 mile's or’ more an hour. That' the car was making such a-speed is-incredible and* contrary to all the direct evidence in the record. That if it were making such a speed it would have been evident to-any one looking at it within two and one-half blocks seems certain; To enter the tracks under such circumstances would be- negligence. The conclusion from’ the evidence’ seems to us inevitable that the truck driver did* not' exercise the care of an' ordinarily prudent man under the circumstances, and that he did not make and act on any reasonable calculation of his chance to pass without any interference with the car moving at a reasonable speed, as was his duty as laid down in the cases cited above. In our view of the case the truck driver was guilty' of negligence as a matter of law. The trial judge erred in not granting defendant’s motion to change the' answers of the jury to questions 10 and 14 of the special verdict. — 484 — Appellant’s counsel assign as error that in both causes of action the drivers of the trucks, over objection, were allowed to testify in substance that they believed that they had time to make the turnouts with safety and without interfering with the street cars. • It is argued that the witnesses were thus allowed to give their beliefs and opinions as to the ultimate issue in the case. With this view we do not agree. When there were cars in,sight it was certainly necessary for the drivers to use their judgment before entering upon the tracks. If they had not testified to so doing the jurors might have drawn unfavorable inferences. The real question at issue was not whether they believed they were safe and would not interfere with the street cars, but whether from the standpoint of a person of ordinary care and intelligence under all the circumstances they acted reasonably. Although the subject of the admissibility of such evidence is not discussed in the Tesch Case and the Dahinden Case, above cited, it is mentioned in both that the plaintiff thought or estimated that he had time to make the crossing without injury. If in this case the testimony had been excluded, we cannot believe, in view of the other testimony, the acts of the drivers, and their instinctive regard for- their own safety, all of which would have been considered by the jury, the verdict would have been different. We hold, therefore, that in the reception of this testimony there was no prejudicial error. The following instructions were given to the jury: "When in these instructions I have charged you that the burden of proof rests upon a party plaintiff or a party defendant to this action, you ai-e instructed that in order to establish the existence of a fact it is incumbent upon the party upon whom the burden of proof is- cast to establish the truth of the proposition involved, to your satisfaction, by a preponderance of the credible evidence in the case, and you must be satisfied by a preponderance of such evidence — 485 — that such fact does exist; unless you are so satisfied your finding should be against the party upon whom the burden of proof is cast. ... If the evidence is so evenly balanced that you cannot determine upon which side it preponderates, or if it preponderates against the party on whom the burden of proof rests, or if it preponderates in favor of the party upon whom the burden of proof is cast,- and, notwithstanding such preponderance, you are not satisfied of the existence of the fact in controversy, your finding should be against the party on whom the burden is cast.” - It is urged by appellant that by these instructions the jury were permitted to decide the ultimate questions involved by some other rule than that of the preponderance of the credible evidence in the case. We do not construe either of these instructions as authorizing the jury to follow its own prejudices or caprice in determining the questions at issue. On the contrary we believe the instructions substantially followed the rule expressed in Anderson v. Chicago B. Co. 127 Wis. 273, 280, 106 N. W. 1077, as follows: “It is well settled by a long series of decisions in this court that the party upon whom rests the burden of proof does not lift that burden by merely producing a preponderance of evidence. He may produce a preponderance, that is, he may produce evidence of slightly greater convincing power to the mind than that produce^ by his opponent, but still his evidence may be weak and leave the mind in doubt. In order to entitle himself to a finding in his favor his evidence must not only be of greater convincing power, but it must be such as to satisfy or convince the minds of the jury of the truth of his contention. This idea, in some definite and certain form, must be given to the jury or the instruction will be incomplete and erroneous.” Citing numerous cases. Wé are satisfied that in giving these instructions no prejudicial error was committed. • Objection was made to evidence on the question of damages and that the damages are excessive, but we find no reason for reversal on that ground. — 486 — It follows from the conclusions reached by us that the counterclaim of defendant is not sustained. By the Court. — Judgment reversed. Cause remanded for further proceedings in accordance with this opinion. No costs allowed in this court except clerk’s fees, to be paid by appellant.