SIEBECKER, J. (after stating the facts, looking as they testify they were. Nor do as above). The trial court directed the jury the conceded facts and physical conditions of to find that under the evidence adduced no the situation presented necessarily impeach cause of action existed. The complaint the evidence of the witnesses so as to warcharges that the defendant's servants were rant the conclusion that their evidence is guilty of gross negligence, and that it caused wholly incredible. We perceive no merit in decedent's death. The argument is made appellant's contention upon this branch of that if such servants on the engine, while the case, and consider that the circuit court crossing the street in question, were keeping was justified in holding, as matter of law, a lookout for the decedent they must have upon the evidence of the switching crew that seen him in a position of peril of being run they in fact kept a lookout, as they assert, down by their engine, and that they must and that they did not see the decedent, and have proceeded deliberately in their course, hence were not guilty of gross negligence in and have run into him willfully; or that as this respect. they passed over the street crossing occupied by the decedent they wholly omitted to keep a lookout for him, and hence in causing his death were guilty of misconduct which, under the circumstances, was gross negligence. The facts and circumstances shown by the evidence fail to furnish a basis for either in-persons upon this crossing, and that such ference. A summary of the evidence is given in the foregoing statement.

[2] The further claim is urged that the jury in the consideration of the evidence would have been justified to conclude that, while in the act of running this engine and tender over the crossing, the men in charge of the engine omitted to keep a lookout for

omission on their part constituted gross negligence in the light of the imminent danger to persons from the engine passing over the crossing. To predicate gross negligence on this ground, it must appear that the passing of this crossing without a lookout being kept, with an engine as here shown, was such reckless and wanton conduct as to suggest that the men on the engine were wholly indifferent as regards the rights and safety of persons whose peril of being injured they must be held, under the circumstances, to have known. "The danger of inflicting a personal injury upon a person by the conduct of another must be such as to reasonably permit of a belief that such other either contemplated producing it, or, being conscious of the danger that it would occur, imposed that danger upon such person in utter disregard of the consequences, to warrant saying, reasonably, that the circumstances indicate a willingness to perpetrate such injury." Bolin v. Chicago, St. P., M. & O. R. Co., 108 Wis. 333, 84 N. W. 446, 81 Am. St. Rep. 911; Wilson v. Chippewa Valley E. R. Co., 120 Wis. 636, 98 N. W. 536, 66 L. R. A. 912; Haverlund v. Chicago, St. P., M. & O. R. Co., 143 Wis. 415, 128 N. W. 273.

[1] Does the evidence tend to show that the members of the switching crew on the engine must have seen the decedent in a position of peril on the track before the moving engine, if they kept a lookout in approaching and passing over the crossing? All the positive testimony of these employés is that they kept a vigilant lookout for persons at the crossing, and that they did not see the decedent. It is contended that this evidence is wholly overcome by the admitted and the physical facts of the situation bearing on this question. The facts relied on to support this contention are that the crossing was clearly lighted by electric lights located on the side of the street above the crossing, that the headlight on the tender of the engine necessarily illuminated the place where the decedent stood as they approached him, that he had a signal lantern with a green light plainly visible from the engine, and that there was no obstruction that could prevent the men on the engine from seeing him. In view of the conditions at the crossing and decedent's presence, it does not necessarily follow that he was in view of the men on the engine keeping a lookout for persons on [3] The evidence showing the use of this the track as they approached and passed onto crossing by the public at the time in question the crossing. His position may have been is wholly barren of anything tending to show obscured, as is claimed, by tree branches, by that those running the engine were necesthe foggy and smoky condition of the atmos- sarily informed that they would inflict inphere, and the passing logging train interfer-juries upon a person in passing over it at ing with the light. Again, the decedent may the speed and in the manner they traveled. have occupied a place outside of the track It appears that all approach from the north and outside of the lighted portion of the was intercepted by the logging train, and it street, until the engine came into close prox- was well understood that it was the decedimity to him, and he may then have moved ent's duty to guard the crossing, and to warn suddenly into the place of danger. Nor can people to keep off it to avoid the danger of it be said that the light of the lantern he had passing trains. These facts refute any claim was necessarily visible to the men on the en-that the engine crew, as they approached gine. This may have been extinguished, or the crossing, were apprised of any actual have been obscured in some way by the position in which he carried it. Under the circumstances, it would be a violent inference to hold that these men, in fact, saw the de

and known dangers to persons from this engine. The inferences from all the facts and circumstances negative any grounds tending to show that there was such imminent dan

it would properly heat the house at that
time. The fact is undisputed that it will
do so when the proper fuel is used. It is
considered that it was the duty of the de-
fendants to use that fuel.
Judgment affirmed.

COEL v. GREEN BAY TRACTION CO.

(Supreme Court of Wisconsin. Nov. 14, 1911.) 1. EVIDENCE (§ 586*)-WEIGHT-STREET RAILROADS-SOUNDING GONG "NEGATIVE EVI

DENCE."

On an issue whether a gong of defendant's street car, by which plaintiff was struck, was sounded as the car approached a crossing, a police officer on the car, who saw the motorman set the brake when the accident occurred; testified that no gong was sounded, because as soon as the accident happened he remembered the fact, and knew that the question of warning by bell or gong was an important one; that he supposed the injury was caused by car going in the opposite direction, because no gong was sounded on the one he was on; that his hearing was good, and his attention was not diverted. Plaintiff testified that he was listening for a car coming in the opposite direction from the one from which he had alighted just prior to his injury, because he knew one might be coming at any time, and that he heard no gong or bell. Held, that such testimony was not negative in the sense that it was overborne, as a matter of law, by testimony of defendant's employés that the gong was sounded. [Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 2432-2435; Dec. Dig. § 586.*] 2. EVIDENCE (§ 586*)—"NEGATIVE EVIDENCE" -WEIGHT.

Testimony is negative only when it tends to prove the nonexistence of a fact by reason of a mere failure of a witness to observe and remember its existence, but, if the evidence asserts such an observation as to the existence of the fact and the recollection of what that observation was, denial of its existence based thereon is affirmative evidence that the fact does not exist.

[Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 2432-2435; Dec. Dig. § 586.*] 3. STREET RAILROADS ($ 93*) - INJURIES TO TRAVELERS-PASSING STANDING CARS-DANGEROUS SPEED.

Where a car by which plaintiff was struck, as he was passing around the end of a standing car from which he had just alighted, was running at a speed usual in the middle of a block, and it required 120 feet or more in which to stop the car, the jury properly found that it was run past the standing car at a dangerous speed.

[Ed. Note.-For other cases, see Street Railroads, Cent. Dig. §§ 195-200; Dec. Dig. § 93.*] 4. STREET RAILROADS (§ 93*) — OPERATION PASSING STANDING CARS.

Where a street car is passing a standing car discharging passengers, the motorman of the passing car is bound, not only to have his car under full control, but is required to keep a sharp lookout, and give warning by bell, gong, or whistle of its approach.

[Ed. Note. For other cases, see Street Railroads, Cent. Dig. §§ 195-200; Dec. Dig. § 93.*] 5. STREET RAILROADS ($ 93*)-INJURIES TO TRAVELERS-PASSING CARS.

a standing car from which he had just alighted, it was not material to his right to recover whether he had ceased to be a passenger, and was a mere traveler at the time of his injury, the care required by both plaintiff and the street car company being the same in either event; each being bound to anticipate that an injury might result if care was not exercised; and each being required to exercise reasonable care to avoid such injury.

[Ed. Note. For other cases, see Street Railroads, Cent. Dig. §§ 195-200; Dec. Dig. § 93.*] 6. STREET RAILROADS (§ 93*)- INJURIES TO

TRAVELERS-NEGLIGENCE-PROXIMATE CAUSE
-ANTICIPATED INJURY.

Plaintiff, after alighting from a standing car, passed around the end thereof, and, failing to hear a car approaching in the opposite direction, started to cross the parallel track, and as he did so stumbled and fell, and was struck and injured by a car approaching on that track at a high speed, without warning. Held, that it was not essential to plaintiff's recovery that the fact that he was crossing the track in front of the approaching car, and might stumble and fall, should have been anticipated by the motorman; it being sufficient that the motorman ought reasonably to have anticipated injury to some one as the probable result of his passing the standing car at a high speed without ringing the bell.

[Ed. Note. For other cases, see Street Railroads, Cent. Dig. §§ 195-200; Dec. Dig. § 93.*] 7. STREET RAILROADS (§ 102*) - INJURIES TO TRAVELERS-NEGLIGENCE-PROXIMATE CAUSE -CAUSAL CONNECTION.

Plaintiff was injured by being struck by a passing street car on the other track, as he passed around the end of the standing car from which he had just alighted. As he passed around the end of the standing car and approached the parallel track, he stumbled and fell. The car by which he was struck passed at a high speed and without signals. Plaintiff was not run over, but was struck such a blow by the front bumper of the car as to break his thigh bone. Held, that there was sufficient causal connection between the high speed of the car and plaintiff's injury to justify a conclusion that it was the proximate cause of the injury.

[Ed. Note.-For other cases, see Street Railroads, Cent. Dig. §§ 186, 194, 200, 203; Dec. Dig. § 102.*]

8. STREET RAILROADS (8 102*) — INJURY AT CROSSING-ACCIDENT.

Plaintiff, after alighting from a standing car, passed around the rear end and started to cross the adjoining track, when he stumbled and fell, and was almost immediately struck by a car moving at a high speed, and without warning; the blow being severe enough to break his thigh bone. Held, that plaintiff was not precluded from relief on the theory that his injury was caused by his stumbling on the track, which was a pure accident.

[Ed. Note.-For other cases, see Street Railroads, Cent. Dig. §§ 186, 194, 200, 203; Dec. Dig. 102.*]

9. NEGLIGENCE (§ 61*)-NEGLIGENT ACTSPROXIMATE CAUSE.

Two negligent acts may concur to constitute the proximate cause of an injury.

[Ed. Note. For other cases, see Negligence, Cent. Dig. §§ 74, 75; Dec. Dig. § 61.*] 10. STREET RAILROADS (§ 117*)-INJURIES TO TRAVELERS-CONTRIBUTORY NEGLIGENCE.

When plaintiff alighted from a street car, there was a distance of 5 feet 9 inches between the nearest rails of the two tracks and a clear space of 2 feet 21⁄2 inches between the cars when they passed each other. Plaintiff listened for

Where plaintiff was injured by being struck by a street car as he passed around the end of

[Ed. Note. For other cases, see Street Rail: roads, Cent. Dig. §§ 239-257; Dec. Dig. 8 117.*1

a north-bound car, and hearing none proceeded ing of the jury, except the one assessing to look for it, and not seeing it attempted to damages. A brief statement of just how cross the parallel track behind the car from which he had alighted, when he stumbled on the injury occurred will aid in understandthe track, and was struck and injured by a ing the scope of such challenge. Plaintiff car running past the standing car without sig- got off the south-bound car at West Mason nals, and at a dangerous speed. Held, that plaintiff was not negligent as a matter of law street, as he claimed, and as the jury found, in failing to wait until the car from which he after it stopped. He then proceeded easthad alighted had passed on for a sufficient dis- ward behind the car, listening for an aptance, so that he could have an unobstructed proaching car from the south on the east view of the opposite track. track. He heard no sound of gong or bell, so he concluded to go east far enough to look south beyond the car he had just alighted from to see if a north-bound car was coming. wWhen he was about a foot west of the east rail of the west track (the one upon which the car he had alighted from was standing), and just as he was about ready to stop to look for a north-bound car, he stumbled with his right foot, took a long step with his left foot to save himself, and another with his right foot, and then was struck by the north-bound car, resulting in a fracture of his thigh bone about halfway between the hip and knee. The car did not run over him. It is quite certain that the bumper on the

Appeal from Circuit Court, Brown County; Samuel D. Hastings, Judge.

Action by Charles J. Coel against the Green Bay Traction Company. Judgment for plaintiff, and defendant appeals. Affirmed.

of the east track and the inside of the east rail of the west track is 5 feet 9 inches.

Action for personal injuries. The defendant maintained a double-track street railway upon South Broadway street, in the city of Green Bay, which runs north and south, and is intersected by West Mason street, at right angles; the latter running east and west. The intersection of these two streets is in the business portion of the city. The south-west side of the car struck him. The bumpbound cars run on the west track and the er is the extreme end of the body of the car, north-bound on the east track. The depot and consists of a piece of wood about six of the Green Bay & Western Railway, and inches in thickness, the bottom of which is other roads, sometimes called the Junction about 214 inches above the pavement. It Depot, is situated on West Mason street, projects a foot and a half beyond the fender. half a block east of its intersection with The clear space between two cars passing South Broadway. Plaintiff boarded a south-each other is 2 feet and 21⁄2 inches, and the bound car to go to the Junction Depot. At distance between the inside of the west rail West Mason street, he got off, and was struck by a north-bound car while going east behind and beyond the south-bound car. The [1] Defendant, to sustain its claim that the defendant's negligence was alleged to consist evidence shows the gong was sounded, rein failing to sound the gong or alarm on the lies upon the rule that the testimony of its north-bound car while approaching the cross- witnesses that it was sounded, being posiing where the south-bound car was discharg- tive, outweighed that of the testimony of ing passengers, and in running said north- plaintiff's witnesses, which it claims was negbound car at an excessive rate of speed while ative merely. Lambert, the motorman of approaching and passing the stationary car. the north-bound car, and Erdman, the conThe jury found (1) that the bell of the car ductor on the south-bound car, testified that that struck plaintiff was not rung as it ap- the gong of the north-bound car, as it approached the south-bound car; (2) that the proached the crossing, was sounded. Opnorth-bound car was run at a dangerous rate posed to this was the testimony of four witof speed; (3) that the south-bound car had nesses on behalf of plaintiff. Miss Cronan, stopped before plaintiff got off from it; (4) who was on Broadway near West Mason that the motorman in charge of the north-street, and who observed the accident, said bound car was negligent in the manner in she heard no gong sounded. Anton Jiore, a which he handled the car; (5) that said neg-passenger on the same car with plaintiff, who ligence was the proximate cause of plaintiff's alighted at the Mason street crossing and injury; (6) that no want of ordinary care on was less than 15 feet from plaintiff at the the part of the plaintiff contributed proxi- time he was struck, testified he heard no mately to his injury; and (7) that he was gong or bell ring. Martin Burke, a police ofdamaged in the sum of $3,700. From a judg-ficer in Green Bay for 11 years, was on the ment in favor of plaintiff, entered on the spe- north-bound car, and saw the motorman set cial verdict, the defendant appealed. the brakes when the accident happened. He Greene, Fairchild, North & Parker, for says he is positive that no gong was soundappellant. Minahan & Minahan, for respond-ed, because as soon as the accident happen

ent.

VINJE, J. (after stating the facts as above). The defendant challenges every find

ed he remembered that fact; and the reason he remembered it was because he had been on a number of cars causing injury, and knew that the question of warning by

bell or gong was an important one. He sup-ed that a warning was given. That was as posed the injury must have been caused by far as their testimony went. the other car, because no gong was sounded on the one he was on. His hearing was good, and his attention was not diverted. The plaintiff testified that he was listening for a north-bound car, because he knew one might be coming at any time, and that he heard no gong or bell. Conceding that the testimony of Miss Cronan and of Mr. Jiore is negative merely, the same cannot be said of that of Mr. Burke and of the plaintiff, especially that of the latter. Burke's mind dwelt upon the question of warning at the time of the accident. True it did not begin to do so until plaintiff had been struck, but it did before the car came to a stop. So it must be fairly said that the question of warning by bell or gong was present in his mind at the time of the injury, and that his testimony that none was sounded was not negative merely. The same is true to a greater extent of plaintiff's own testimony. He was listening for a bell or gong, because he realized that it was of the utmost importance for him to do so, as a car might be coming north at any time. He had nothing over his ears, his hearing was normal, and he was in a position to hear, and he listened and heard none. Under such circumstances, his testimony that no bell or gong was sounded rises above the level of mere negative testimony. Where the existence or nonexistence of a physical fact ascertainable by the senses is called to the attention of a witness at the time and place it is claimed to exist or not exist, and the witness is in a position to ascertain its nonexistence as readily as its existence, and he makes an observation to ascertain what the fact is, his testimony that it did not exist is not negative in the sense that it can be said as a matter of law that positive testimony outweighs it. Such testimony, opposed by testimony of its existence, raises an issue of fact for the jury. Van Salvellergh v. Green Bay T. Co., 132 Wis. 175, 111 N. W. 1120, and cases cited; Anderson v. Horlick's M. M. Co., 137 Wis. 569, 119 N. W. 342.

[3, 4] The jury found the north-bound car was run at a dangerous rate of speed as it passed the south-bound car. The defendant takes issue with this finding, not so much because the jury has found a higher rate of speed than the evidence warrants, but because they have denominated such speed dangerous. The undisputed testimony shows the car was going at least as fast as cars usually go in the middle of a block passing from one street to another. There is much evidence to show that it went faster; and it is an undisputed fact that if plaintiff was struck at the south crossing of West Mason street, as he claims, the car went a distance of 150 feet before it came to a stop; while if he was struck at or near the north crossing thereof, as claimed by defendant, the car passed him 120 feet before it was stopped. The motorman testified that he felt the car strike something, and that he then applied the brake. There was no snow on the ground, and there is no evidence that the rails were wet, or that the car was going downgrade, or that the brake was out of order. The motorman said the slack was out of the brake and the power off when he struck plaintiff. Under such conditions, the fact that it required 120 feet or more in which to stop the car is, in the absence of any other adequate explanation, indicative of a high rate of speed. But assuming that the car passed the south-bound one at a rate of speed no greater than is usual in the middle of a block-an assumption as favorable to the defendant as can possibly be indulged in under the evidence-cannot such speed be called dangerous under the circumstances? The intersection of Broadway and West Mason streets was in the business portion of the city, and the crossings were used, not only by the patrons of the defendant, but by the public generally. The motorman could see the south-bound car coming, and had reason to anticipate that it would stop to discharge passengers, even if, as claimed by him, it had not come to a full stop. Under [2] Testimony can be said to be truly neg- such circumstances, it was his duty to slow ative only when it tends to prove the nonex- up, and have his car under complete control istence of a fact by reason of a mere failure while passing the other car. He testified he to observe and remember its existence. If it knew the defendant had a rule that a car on asserts an observation as to its existence and a double track passing another standing still a recollection of what that observation was, should be under full control, and by that he a denial of its existence based thereon is as meant a car was to be run slow enough so much affirmative evidence as is an assertion that it could be stopped in but a few feet. that it did exist. Anderson V. Horlick's This rule of the defendant company is but M. M. Co., 137 Wis. 569, 119 N. W. 342. The the rule of law applicable to such a situation. cases of Wickham v. C. & N. W. Ry. Co., 95 Not only must the passing car be under full Wis. 23, 69 N. W. 982, and Ryan v. La Crosse control, but a sharp lookout must be kept Ry. Co., 108 Wis. 122, 83 N. W. 770, relied up by the motorman, and he must give warning on by defendant, are not in conflict with this by bell or gong or whistle of his approach. rule. In each of those cases, the witnesses 2 Nellis, Street Rys. § 346; 2 Thomp. Neg. who testified they did not hear the warning § 1392; Bremer v. St. Paul City Ry. Co., 107 were paying no attention to the fact as to whether or not it was given at the time the

a rate of

Minn. 326, 120 N. W. 382, 21 L. R. A. (N. S.) 887; Pelletreau v. Metropolitan Street Ry.,