firmed 174 N. Y. 503, 66 N. E. 1113; Louisville City Ry. Co. v. Hudgins, 124 Ky. 79, 98 S. W. 275, 7 L. R. A. (N. S.) 152; Chicago City R. Co. v. Robinson, 127 Ill. 9, 18 N. E. 772, 4 L. R. A. 126, 11 Am. St. Rep. 87. See, also, 4 L. R. A. (N. S.) 729, note. was the proximate cause thereof. The argument to support the alleged absence of the element of reasonable anticipation is based upon the erroneous assumption that it was necessary that defendant should anticipate that plaintiff would stumble and come in contact with the car in that manner. Counsel says: "To hold the motorman to the doctrine of reasonable anticipation under the facts of this case, it must be said that he should reasonably anticipate the sudden stumbling of this plaintiff, resulting in the collision." And again: "Nor can it be said that an ordinarily prudent man should reasonably anticipate that another will stumble, and so be injured." These extracts are fair samples of the argument on this question. The element of reasonable anticipation is not limited to such a narrow field. It is not necessary that an ordinarily prudent man ought reasonably to have anticipated the particular injury to the plaintiff, or to any particular person. It is sufficient that such a man ought reasonably to have anticipated that his conduct might probably cause some injury to another. Mauch v. Hartford, 112 Wis. 40, 87 N. W. 816; Morey v. Lake Superior T. & T. Co., 125 Wis. 148, 103 N. W. 271, 12 L. R. A. (N. S.) 221; Sparks v. Wis. Cent. Ry. Co., 139 Wis. 108, 120 N. W. 858, and cases cited. Hence it was within the field of reasonable anticipation that some one at some time might stumble or fall, or in some other natural manner suddenly come in front of a moving car as it passed a standing one discharging passengers. From what has already been said on the subject of reasonable [5] It is not necessary to consider and determine the question whether or not plaintiff had ceased his relation as a passenger with the defendant at the time he was struck. He was on a street crossing, and his rights as a mere traveler on the street entitled him to an observance on the part of the defendant of the rule just stated. The reasons for the rule are obvious. When a car is standing still discharging passengers, those who have occasion to cross the tracks behind it have but a limited opportunity to see a car coming in the opposite direction. They are in close proximity to danger without adequate means of observation. True such a situation imposes upon them the exercise of care commensurate with the danger of the situation. But neither the street railway company nor the passenger or traveler has a right to assume that the other will take sufficient precautions to prevent injury. Each must exercise care. Each is bound to anticipate that an injury under such circumstances may result to some one, if care is not exercised. Weber v. Kansas City R. Co., 100 Mo. 194, 12 S. W. 804, 13 S. W. 587, 7 L. R. A. 819, 18 Am. St. Rep. 541. Hence the duty on the part of the company to keep a lookout, to give warning by bell, gong, or whistle of the approach of the car, and to have it under full control, so that it may be stopped within a short distance, should any one sud-anticipation in connection with the question denly come in front of it. In view of the rule of law applicable to such a situation, it follows that the conceded rate of speed of the car was a dangerous one, and that the finding of the jury to that effect was in accord with the evidence. The contention that plaintiff alighted from the car before it came to a full stop cannot be sustained, as there is ample evidence to support the finding of the jury. There is some conflict in the testimony as to whether or not the car was standing still when he got off from it, but even defendant's witnesses say it was standing still when he was struck. The negligence of the motorman, found in answer to the fourth question, must have consisted in his failure to ring the bell and in running his car at a dangerous rate of speed, as no other negligence is alleged or proven in of the dangerous rate of speed, it follows that the jury were warranted in finding that the motorman ought reasonably to have anticipated some injury to some one as a probable result of his failure to ring the bell, and the high rate of speed of the car. It is argued that the failure to ring the bell had nothing to do with the stumble or with the injury. Counsel say: "The object of ringing the bell on a street car is to warn people of the approach of a car, but plaintiff was warned, because he says he knew that a car might be approaching, and that he was intending to look and see if one were in fact approaching." Here, again, is a singular confusion of ideas. Knowledge of the fact ferent and distinct from knowledge of the that a car may be approaching is quite diffact that it actually is approaching. True plaintiff knew that a car might be coming, [6] We come now to what we conceive to and for that very reason he proceeded to be defendant's main contention in the case, ascertain if it was in fact coming. Had namely, that neither the failure to ring the the bell been rung, there would have been bell nor the excessive rate of speed was the no necessity for his looking. The message proximate cause of plaintiff's injury. It is of a ringing bell on an approaching car is claimed that the element of reasonable an- not, "I may be coming at any time;" it is, ticipation of injury is wanting; that there "I am coming now." The jury might well is no causal connection between the failure say that it was for lack of such a message to ring the bell or the high rate of speed, that plaintiff put himself in a position where the case. the car, and therefore a failure to give it was a producing cause of the injury. Kujawa v. C., M. & St. P. Ry. Co., 135 Wis. 562, 116 N. W. 249. [7] Was there a causal connection be tween the high rate of speed of the car and plaintiff's injury? Defendant's counsel claim not. The gist of their argument is that it was plaintiff's stumble, and not the speed of the car, that caused his injury; that if plaintiff had not stumbled no injury would have resulted, whether the car was traveling fast or slow. The car might have been at the place of the accident, even if it had traveled at a slow rate of speed, and plaintiff might have been injured just the same, whether the car was going fast or slow. The fact that the car was at a point where "plaintiff could stumble into it did not constitute negligence. It was merely a condition that existed. It so happened that the car was there when plaintiff stumbled into it; it might have so happened, had the car been under perfect control or standing still. We quite agree with counsel that the fact that the car was where plaintiff could stumble into it shows no causal connection between the speed of the car and the injury, and we quite agree that there is no force in the contention that, had the car not been moving at so high a rate of speed, plaintiff could have had his stumble all by himself, as the car would not have been there. We are further of the opinion that it is idle to speculate upon what might have happened under other conditions. The question that confronts us is, What causal connection is there between the conditions actually existing and the injury? Defendant says the excessive speed of the car did not injure plaintiff; it was the stumble, coupled with the presence of the car at the time and place of such stumble, and it relies upon the case of Holdridge v. Mendenhall, 108 Wis. 1, 5, 83 N. W. 1109, 1110 (81 Am. St. Rep. 871), to sustain its position; and it cites other cases where it has been held that excessive speed was not the proximate cause of the injury. There are no doubt many such cases. The Holdridge Case is perhaps as good an illustration of them as can be found. There, a little boy was following behind a team in the middle of the block. The court says: "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 where it could not have stopped, nor effective warning given before it ran over him, whatever its speed." It is obvious that the injury resulting from being run over by a slow-moving car and a fast-moving car is likely to be the same. But does it follow from that that a blow from a slow-moving car is likely to produce the same result as a blow from a fast-moving car? Can it be said that the impact caused the rate of 10 to 15 miles per hour is no greater than that caused by a car moving three or four miles an hour? We think not. In the case at bar, plaintiff's injury was not caused by his being run over; for he was not run over. He stumbled in front of the bumper of the car, and the blow broke his thigh bone. It is evident the severity of the blow would be in direct proportion to the speed of the car. Well might the jury say that it was reasonably certain that, if the car had been under complete control and moving at a proper rate of speed, no broken leg would have resulted. The causal connection between the effect of a blow and the velocity of the object causing it seems obvious. It is natural and probable that a swiftly moving car would break a bone under the circumstances of this case. It is not natural and probable that a car under complete control would do so. [8] But it is urged that plaintiff's stumble, assuming that he was not guilty of contributory negligence, was a pure accident, and the defendant should not be held responsible for the result on that account. No one is seeking to hold defendant responsible for an accident. By failing to ring the bell, it induced plaintiff to approach nearer the east track than he otherwise would. When near the track, a stumble precipitated him upon it. So defendant's negligence in failing to ring the bell brought plaintiff within the field of danger, and when within that field it negligently inflicted upon him a blow severe enough to break his thigh bone, owing to the dangerous rate of speed of the car. The element of accident, it would seem, is reasonably eliminated, and liability made to attach to negligence, and not to accident. [9] The jury found that the motorman negligently operated the car, and that such negligence was the proximate cause of the injury. The negligence, as already pointed out, consisted in a failure to ring the bell and in an excessive rate of speed. They therefore found that these two negligent acts combined constituted the proximate cause of the injury. That two negligent acts may concur to constitute the proximate cause of an injury is well settled. Glettler v. Sheboygan L. P. & R. Co., 130 Wis. 137, 109 N. W. 973. [10] The finding of the jury that plaintiff was not guilty of contributory negligence, we think, is supported by the evidence. The defendant claims he was negligent in not waiting till the south-bound car had passed on, so that he could have an unobstructed view southward of the east track. We think no such duty devolved upon him. got off first, and he saw others about to follow him. He listened for a north-bound car, and, hearing none, he proceeded to look He was a distance of 5 feet 9 inches between | chine known as a "matcher," equipped with the nearest rails of the two tracks, and a rapidly revolving knives and gearing, the clear space of 2 feet 2 inches between frame of which was about 15 feet long and cars when they passed each other. Under 6 feet wide, the machine being used for such circumstances, it was a question for surfacing lumber; that one foot distant from the jury as to whether or not it was neg- the rear end of such matcher a machine, ligence to proceed far enough to look south known as a lath machine, was installed, the beyond the standing car. It appears that front end of which faced the matcher; the the street had a brick pavement. Plaintiff beds of the two machines being on a level. could not reasonably anticipate that he These machines were used conjunctively; would stumble upon it at that particular lumber being passed from the bed of the time and place. Koutsky v. Forster-Whit- matcher to the lath machine. The frameman L. Co., 146 Wis. 425, 131 N. W. 1001. work of the lath machine was about 5 feet He says he is unable to state what occa- long, 3 feet wide, and 41⁄2 inches up and sioned the stumble, and no one else has down, and the bed or frame plate attached succeeded in discovering its cause; so we to the top of the frame was about 3 feet must regard it as a pure accident. from the floor. Above the frame plate were Judgment affirmed. a number of small rotary saws, and immediately below and 7 inches back of the front end of the frame plate were two rotary saws, 9 inches in diameter, in perpendicular position, extending about 31⁄2 inches below such plate. The saws were attached to an axle connected with shafting and belting, propelled by steam power. For the purpose of raising and lowering these saws, there was a small wheel underneath the frame plate, to one side of and about on a line with the saws. Plaintiff began work for the defendant about November 1, 1908, and in the performance of his duties was required to operate said matcher. On the morning of November 5th, a large pile of sawdust and other mill refuse had accumulated on the floor between the matcher and the lath machine. It is alleged that it was necessary for plaintiff to oil a spindle cock underneath the matcher, and that in atWhere the jury viewed the premises and tempting to remove the sawdust and refuse machine where and by which a servant was in- to make room for him to crawl under the jured, they could use the knowledge so acquired machine, as was necessary in order to acin determining the credibility of the evidence of-complish his purpose, his right hand came SOLBERG v. ROBBINS LUMBER CO. (Supreme Court of Wisconsin. Nov. 14, 1911.) 1. Appeal and ERROR (§ 1064*)-REVIEW-IN STRUCTIONS-ASSUMPTION OF FACTS. In an action for injuries to a servant by his hand coming in contact with the saws of a logging machine, an instruction that the jury should decide whether plaintiff ever raised and lowered the saws by means of a wheel under the lath machine, and if he did so before his injury the jury would conclude that he must have known that they were not covered, was not reversible error, in so far as it assumed that plaintiff must have seen the saws and known that they were unguarded, as an undisputed fact. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. 88 4221-4224; Dec. Dig. 1064.*] 2. TRIAL (8 309*)-JURY-VIEW. fered. [Ed. Note.-For other cases, see Trial, Cent. Dig. 738; Dec. Dig § 309.*] 3. TRIAL (254*) - INSTRUCTIONS - KNOWL- in contact with the uncovered and unguard ed lath machine saws, as a result of which plaintiff's hand was injured. The complaint further alleges violation of section 1636j, Stats. 1898, for failure to properly fence or guard the saws on said lath machine. The answer puts in issue all the material allegations of the complaint, and alleges that such injury was not caused by any negligence on the part of the defendant, but was due to negligence and want of ordinary care on the part of the plaintiff. By its answers to questions submitted on a special verdict, the jury found, among other things, that plaintiff knew and appreciated the danger of Appeal from Circuit Court, Oneida Coun- coming in contact with the saws, and that ty; A. H. Reid, Judge. court. [Ed. Note. For other cases, see Trial, Cent. Dig. §§ 624-626; Dec. Dig. § 254.*] plaintiff by his failure to use ordinary care Action by Carl Solberg against the Rob-proximately contributed to produce his inbins Lumber Company. Judgment for de fendant, and plaintiff appeals. Affirmed. jury. The court ordered judgment, dismissing the complaint, from which judgment this appeal is taken. The complaint alleged that the defendant was engaged in the business of manufactur- W. K. Parkinson, for appellant. Aarons ing and dressing lumber, and that defendant & Niven and E. D. Minahan, for respondhad in operation in its planing mill a ma-ent. BARNES, J. (after stating the facts as | W. 328; Neilson v. Railway Co., 58 Wis. 516, above). [1] Appellant insists that the court 523, 17 N. W. 310; Johnson v. Boorman, 63 erred in giving the following instruction to Wis. 268, 22 N. W. 514; American States Sethe jury: "And you should consider and decurity Co. v. Railway Co., 139 Wis. 199, 205, cide whether the plaintiff ever raised and 120 N. W. 844, and cases cited. This being lowered the saws in question by means of so, they had the right to use such knowledge the little wheel under the lath machine ta- in determining whether the court made a ble, and if you find that he did so before his correct statement of fact. We have no means injury then you will conclude that he must of knowing just what knowledge the jury have seen the saws and known that they imbibed from this view. The jurors might were not covered, and in that event you have reached a different conclusion from that should take that into consideration." The arrived at by the court, and might have disfault found with the instruction is that the regarded his mistake entirely in arriving at court assumed that it was an established a verdict, if any mistake was in fact made. and undisputed fact in the case that the Section 3072m, Stats. (Laws of 1909, c. 192), plaintiff must have seen the saws of the provides: "No judgment shall be reversed lath machine and have known that they on the ground of misdirection of were not guarded, if he raised these saws the jury unless in the opinion of by means of the wheel under the table of the court to which the application is made, the machine; whereas the jury would be after an examination of the entire action, warranted in reaching a contrary conclusion * it shall appear that the error comon the evidence. plained of has affected the substantial rights of the party seeking to reverse or set aside the judgment." A reading of the testimony does not throw any satisfactory light on the question, as very little of it pertains to the point, and that only in an incidental way. In fact, there does not appear to have been much of a controversy upon the question on the trial. A photograph showing the wheel and the projection of the saws under the table of the lath machine, as well as the absence of a guard, was in evidence. Respondent argues that this photograph shows to a demonstration that the court was right. The trial judge, in his opinion on the motion for a new trial, stated that it was perfectly obvious from an inspection of the photograph that it was impossible to look for and find the little wheel under the lath machine table, by means of which the saws were raised and lowered, and which was located within a few inches of the saws, without seeing the saws and observing that they were unguarded. The conclusion of this court is that it is highly improbable that plaintiff did not see the saws during the operation, but that it is not an impossibility. The questions therefore are: Does the record show that the court erred, and, if so, was the error prejudicial? * After examining the record, this court is far from being satisfied that the trial court committed any error. The evidence offered, as far as there is any, strongly tends to support the conclusion of the trial court, and there is no evidence to the contrary. There is, of course, the possibility that the trial court was wrong; but this falls far short of an affirmative showing of prejudicial error, or in fact of any error. Under such circumstances, the judgment should not be reversed. Wiese v. Riley, 132 N. W. 604. [3] After the jury had been deliberating for some time, they were called into the Courtroom, and the following colloquy took place: "A juror: A question we want to if, in deciding this question, jurors were know was this: I asked you the other day supposed to take into consideration the things in regard to this-in case they positively if one has, to use a hypothetical case, if he know this from experience. For instance, is an expert, is the juror supposed to use the information that he knows in regard to that in weighing this evidence and convincing other jurors as to the facts of the case? The Court: I understand your question, I think. Some significance should be attached to It is usual to instruct a jury in some cases the fact that plaintiff's counsel did not in that they are expected to use all of the any way call the attention of the court to knowledge, skill, and judgment that they posthe alleged misapprehension of the facts, assess, and bring that to bear upon questions we think is customary, though perhaps not involved. A juror who has expert knowledge obligatory. Trial courts are uniformly care--that is, personal, not hearsay-is entitled ful not to invade the province of the jury in to bring that to bear in assisting him and in determining questions of fact, and if the court's attention had been called to the alleged error it would undoubtedly have been corrected, if error it was. [2] The court and the jury viewed the premises and the machines in question. The knowledge which jurors acquired from such view they had the right to use in determining the credibility of the evidence offered. Wash assisting the other jurors in arriving at a right verdict. In fact, it is impossible to separate a juror from his personal knowledge anyway, and he is expected to use that. That is part of his mental equipment in discharging his duty. The juror: In this case, it has developed there are several that understand the construction of these machines. We can't very well separate from- The Court: edge from anything else. You are entitled that the juror who asked the question, or to use it." It is argued that the court committed prejudicial error, in that the jury were advised that they might return a verdict upon their knowledge, or supposed knowledge, not derived from the evidence in the case. The language used by the court was not happy, in that there is a possibility that it might have misled the jury into the belief that they were at liberty to treat their knowledge as evidence, and decide the case upon such knowledge, rather than upon the testimony, and even in opposition thereto. This they might not do. Washburn v. Railway Co., 59 Wis. 364, 370, 18 N. W. 328; Johnson v. Boorman, supra; Sherman v. Menominee River L. Co., 77 Wis. 14, 22, 45 N. W. 1079. The court told the jury at the beginning of its charge: "It is your duty to answer these questions according to the fact in each instance as you shall find the fact to be from the evidence given here in court. * * In deciding these questions, you should confine your consideration to the evidence given here in court and the proceedings had here in your presence." As to each of the questions propounded to the jury, they were told in substance to answer them according to the preponderance of the evidence. The charge repeatedly informed the jury that the case must be decided upon the evidence given on the trial. The juror who asked the question above quoted undoubtedly so understood the charge, because he did not ask if the jurors might use their special knowledge as evidence, but if the jurors might consider such knowledge in weighing the testimony offered by the parties. In view of the repeated statements of the court above referred to, we think the jury would construe the somewhat ambiguous language of the court as no more than an affirmative answer to the question asked, and as informing them that they might use the knowledge which they had gained from observation and experience in determining the credibility of the evidence. What the juror said in effect was that he and some of his fellow jurors had practical knowledge of the construction of lath machines, not common to all the panel. The language used by the court was certainly no more calculated to mislead than the charge which was held not to be erroneous in Neanow v. Uttech, 46 Wis. 581, 586, 1 N. W. 221. There the court instructed as follows: "You are to bring to bear upon this question [the exercise of ordinary care] your own knowledge and your own judgment. It is for you to examine all the testimony, all the surroundings, all the circumstances, and then apply your own judgment, your own good sense, and answer the question, either in the negative or affirmative." any of his associates, was a competent witness, rather than a qualified juror. It is well settled that jurors cannot supply a material item of evidence by assuming knowledge on the subject. It is just as well settled that it is highly improper for a juror to assert in the jury room knowledge on some specific point involved in the trial which would make him a material witness. If use is to be made of such knowledge, it should be given under oath from the witness stand, where the party adversely affected would have the right of cross-examination. So we think the real question here is, May one or more jurors use the knowledge which they have gained from observation and experience, not common to all the jurors, in determining the credibility of the evidence offered, and give the benefit of such knowledge to their fellow jurors, who may lack such information? Lawyers know that jurors always have and always will do just what we think the court in effect said might be done here, and it is difficult to see how they could well do otherwise. If a juror knows that a plaintiff in an action is a man of character and standing, whose word is as good as his bond in the community in which he lives, and that the defendant is shifty, tricky, untruthful, and unreliable, and a question of veracity arises between the two, it is well-nigh impossible for him to remain oblivious to the facts which he knows when he is determining the question of credibility. So, too, when one witness testifies to something which the observation and experience of the juror tells him is false, while another witness has testified in reference to the same matter to what he knows to be the truth, it is difficult to imagine how a juror could disregard what he knows in passing upon the credibility of the witnesses. If he could do it, it is not desirable that he should, because that knowledge is part of the equipment which he brings with him to the jury box. A person is not supposed to forget everything he ever knew and become an automaton when he is sworn as a juror. He may make use of the intelligence with which he is endowed and the knowledge he has gained for the legitimate purpose of passing upon the credibility of the evidence. It is said in the discussion of the first error assigned that jurors may use the knowledge which they acquire from a view of the locus in quo in passing upon the credibility of evidence, and the proposition is well settled by the cases cited and referred to. Knowledge gained in this way is no more sacred than knowledge acquired in some other way, provided it is actually acquired. It is proper for trial courts to instruct juries that in weighing testimony they must take There was no assertion that the jurors into consideration their knowledge, observahad any knowledge of the specific facts in tion, and experience. Such an instruction |