Lindquist v. Duluth Street Railway Co.

Siebecicer, C. J. An examination of the evidence shows that the jury was justified in finding that the street car in question was being operated at approximately a rate of speed of twenty-three and one-half miles per hour from the time it was in view of the driver of the automobile from the Twelfth-street crossing. This rate of speed was in violation of the city ordinance regulating the rate of speed of street cars at the place in question, which limited the speed to ten miles per hour. It "is also shown that the driver of the automobile looked to see if a street car was approaching when he approached and drove onto Tower avenue and that he saw this street car coming from the south. The respective distances of the automobile and the street car from the point of collision at the time the automobile reached the curb line of Tower avenue required the automobile to travel forty'-six feet while the street car traveled 122 feet. It is well established that the automobile was proceeding at the rate of nine miles per hour. Had the street car been traveling at a rate of speed not exceeding ten miles per hour, it is obvious that the automobile would have safely passed the street-car tracks at the place of collision. Under the facts and circumstances shown, the jury was well sustained in concluding that the driver of the automobile did not know that the street can was traveling at a high and forbidden rate of speed at the time he had reached the curb of Tower avenue. In the light of the evidence the court properly refused to interfere with the verdict finding [161] defendant guilty of negligence in operating the street car immediately before the collision. Nor is the claim well founded that the verdict of the jury exonerating the driver of the automobile from negligence is not sustained by any evidence. It was clearly for the jury to determine upon the evidence adduced whether or not such driver was guilty of a want of ordinary care in operating the automobile and attempting to cross the street-car tracks in the manner he did. We discover no similarity in the evidentiary facts of this case and the facts involved in Holdridge v. Mendenhall, 108 Wis. 1, 83 N. W. 1109. As there stated: “It was practically undisputed in the case that the boy unexpectedly stepped or ran in front of the car when only a few feet distant, and when it could not have been stopped, nor effective warning given, before it ran over him, whatever its speed.” The instant case presents no such conditions. It is considered that the court properly refused to set aside the verdict upon the ground that plaintiff omitted to pay attention to her safety in the attempt to cross the street-car tracks in front of an approaching car. As indicated, the conditions presented to the occupants of the car, under the facts and circumstances of the case, would be the same as those presented to the driver of the automobile, who, as the jury found, exercised due care. It logically follows that the plaintiff was not guilty of a want of ordinary care in taking no active steps to prevent crossing the tracks in the manner undertaken by the driver. We have examined the evidence and are satisfied that the damages awarded by the jury cannot be disturbed by this court as excessive. By the Court. — The judgment appealed from is affirmed.